Lawyers & Legal Services

M-22 & M-119 Road Sign Trademark Denied by Michigan

Note: We have received some commentary from the attorney for M-22 which we have posted below!

M-22 Euphoria by Chris Cerk
M-22 Euphoria by Chris Cerk

The Detroit Free Press reports that M-22 and M-119 cannot be trademarked by private companies. Michigan Attorney General Bill Schuette has ruled that the highway sign logos are public property and as such cannot be “commandeered” for private use.

“Because the State of Michigan, the creator of the design, placed the Michigan highway route marker design in the public domain, no entity can lawfully obtain intellectual property protection of the design under trademark or copyright law,” Schuette concluded.

“…The fact that they have appropriated the design from the public domain and affixed it to merchandise does not create a legitimate basis for trademark protection.”

That’s probably not the best news at M-22, the clothing business that has made the sign an iconic symbol of active life in northwest lower Michigan, but it doesn’t look like the ruling precludes them selling clothing and other products with the road sign on it.

Speaking of M-22, they  are holding their annual M-22 Challenge this weekend at the Sleeping Bear Dunes National Lakeshore. The annual bike/run/kayak triathalon is a pretty cool spectator event if you’re in the area!

Here’s M-22 and M-119 (aka the Tunnel of Trees) on Wikipedia.

Commentary from Enrico Schaefer, Founding Partner at Traverse Legal, PLC

Michigan Attorney General Bill Schuette must know that trademarks, copyrights and other IP are matters of federal law. The State has no say in the matter. His opinion has no force under law at all. More importantly, his “opinion” is severely misguided and uninformed. Taken to its conclusion, no artist or photographer can have intellectual property rights in their artwork or photographs of state parks, buildings, landscapes, roads, etc. Public universities, funded with public dollars, could not hold IP either in their logos, trademarks or patents. Neither could the state of Michigan protect, for instance, its Pure Michigan campaign which has tens of millions of dollars invested in its campaign. It is also important to note that trademarking these road signs has literally no impact on the public domain rights. Assuming that these companies who have invested time and money creating IP rights around road signs to create valuable brands (no easy tasks for sure), the only impact is to keep someone from copying that use as a trademark. All other non-trademark uses, for instance to identify location, as always permitted. By limiting the trademark use to a single business who (a) was first in the market and (b) invested substantial money and risk in creating the market), companies are created which generate tax revenue and jobs. Without trademark protection, consumers are left with cheap knock-offs and imitations. Consumers can not identify source and the market is destroyed. What Schuette fails to comprehend is that without trademark protection, there can be no Nike or Microsoft or Google. Consumers would not buy products based on brand because consumers could never gauge quality based on a trustworthy source.

Thank goodness his overreaching is without effect, since the adverse impact to the Michigan intellectual property economy could be in the hundreds of millions of dollars or more. This appears to be just another example of overzealous government bureaucrats trying to expand their reach and control over Michigan businesses. Michigan Attorney General Bill Schuette proves once again he knows nothing about commerce and business. He has certainly proven he knows little about intellectual property.

Why We Went Dark

Along with many sites on the Web, Absolute Michigan went dark on January 18th to protest a pair of truly awful bills that are on a fast-track for passage, the Stop Online Piracy Act (SOPA) in the House and the Senate’s Protect IP Act (PIPA).

Neither of these new laws would stop piracy, which Absolute Michigan is opposed to. Both, however, would put control of online content in the hands of large entertainment corporations and the government, placing a giant burden on web media outlets like Wikipedia, WordPress, YouTube … and even little old Absolute Michigan.

With our Absolute Michigan, Michigan in Pictures and Leelanau.com websites all down yesterday, there was some time to think about the issue, and we’d like to share one thought: We live in a world very different from the early 1700s when Parliament enacted the Statute of Anne to address the concerns of English booksellers and printers (you can look it up … for now, on Wikipedia).

We are encouraged at every turn and by every consumer device to sing along to commercials, dance to the latest music and in general, swim in a sea of ever-present media. You can debate the pros and cons of doing that but it seems that expecting our candid videos, blogged observations or FacebookedTM thoughts won’t incorporate background music or samples, brand names is flat-out silly. We need intelligent and well thought out laws that recognize the modern world, and SOPA and PIPA definitely aren’t either of those things.

Click here to watch a short video or read more about this issue and please take a moment to contact your elected officials through the links we provide!

Michigan Bloggers Beware: New Blogging Rules Pack Punch

Editor’s note: Traverse Legal is a sponsor of Absolute Michigan whose areas of practice include internet-law, e-commerce and technology law. They are also our law firm, so when they sent me a notice about the new FTC guidelines, I thought it would be a good idea to share with all the Michigan bloggers who frequent Absolute Michigan.

blogging by kpwerker
blogging by kpwerker

Michigan bloggers and affiliate marketers should take note: the Federal Trade Commission has issued new guidelines under 16 CFR Part 255 concerning the use of advertising, testimonials, and endorsements in blog posts. Starting December 1, 2009, bloggers and affiliate marketers who endorse a product must disclose whether they have a material connection to the product’s provider if that connection would affect the public’s assessment of the weight or credibility of the endorsement. Bloggers and affiliate marketers who receive payment for their endorsement of a product, or any other kind of remuneration—free or otherwise— can be held liable for a violation of these regulations. Failure to comply with the new rules could cost Michigan bloggers and affiliate marketers up to $11,000 per post.

Additional guidelines have also been enacted concerning celebrity endorsements. Prior to the new guidelines, celebrity endorsers could not be held liable for false or misleading advertising that was associated with a product that they endorsed. That has changed, however, as celebrities must now disclose their connection with an advertiser and can be held liable, along with the advertiser, for any false or misleading advertising. Further, celebrities must also disclose their relationship with an advertiser even if they mention the advertiser’s products in non-traditional advertising channels, such as on talk shows or radio shows.

The rules governing consumer testimonials have also changed. Advertisers can no longer hide behind a disclaimer that states that “Results are not typical.” If an advertiser uses a consumer testimonial to make a statement about the efficacy of a product, the advertiser must now disclose what the typical results would be. Advertisers must also disclose the basis for any survey evidence used in their advertisements, as well as their connection to the surveying entity.

In short, if you are a blogger or affiliate marketer who reviews products, uses testimonials to sell products, or relies on celebrity endorsements, it is important that you understand these new rules. Contact an attorney that is familiar with these rules to ensure that you are in compliance, as even blogging attorneys must comply with the rules.

Disclosure: Traverse Legal is a sponsor of Absolute Michigan.

We Are Michigan Concert Series ~ April 30 – May 2

who-hit-johnThe We Are Michigan concert series is a three-day event to help raise awareness about gay, lesbian, bisexual & transgender human rights issues in 3 Michigan cities. Each evening will feature an array of music with activists who will share their experiences fighting for gay rights.

Thursday April 30th at the Magic Bag in Ferndale features Rachael Davis, My Dear Disco, Nervous But Excited, and Chris Bathgate. ACLU of Michigan staff attorney Jay Kaplan will discuss what his organization’s LGBT project is working on to help the cause of LGBT victim rights. Tickets are $10 at the door and the show starts at 8pm.

Friday May 1st in Ann Arbor is Nervous But Excited and Breathe Owl Breathe will play at The Ark. Coalition for Adoption Rights Equality (CARE) President Beverly Davidson will discuss House Bill 4131 that could allow for second-parent adoptions in Michigan. Tickets are $15 at the door and the show starts at 8pm.

Saturday May 2nd at the Insideout Gallery in Traverse City is Kalamazoo-based old time string-bang Who Hit John? (pictured above) will be there along with songwriter Michael Beauchamp and Cmoon, featuring local freestyle artist Cnote, Moon Beam and Adam Reid. Triangle Foundation Victim Service Director Melissa Pope will discuss various legal and political issues. Tickets are $15 at the door, $12 in advance.

Here’s their promo video…

It’s “Hello World” for Michigan wine drinkers

Barrel room at Merryvale by star5112
Barrel room at Merryvale by star5112

Tom Wark’s Fermentation wine blog says:

Michigan Consumers should be smiling. A Federal District Court Judge in that state ruled on Tuesday that the state’s law that bars consumers from buying and having wine shipped to them from out-of-state retailers violated the U.S. Constitution and enjoined the State from enforcing laws that prevent such shipments.

The decision was a forceful one. Judge Donna Hood made no bones about it:

“the State’s argument that the Twenty First Amendment gives it the authority to regulate alcohol coming into the state and that the three-tier system it has designed for regulatory purposes is appropriate is flawed. While the Heald court did state that the three-tier system was an appropriate use of state power, it did not approve of a system that discriminates against out-of-state interests. The Supreme Court made clear in Heald that a state’s power under the Twenty First Amendment is not above the Commerce Clause nondiscrimination requirement.”

Read the rest of A Forceful Voice for Consumers. Also see NEWS: Judge Orders OK to Shipping by Out-of-State Retailers from MichWine …and say hello to to the wineries of California, New York, Washington, Texas, North Carolina and so on!

Sulfide Mining goes to the movies

For more on this issue visit Save the Wild UP and also check out Anatomy of a mine: Lansing hearings put U.P. wilderness on trial from the Lansing City Pulse:

The hearings hit hard rock Wednesday, April 30, when a white-haired man in suspenders slowly made his way to the stand, leaning on a cane.

Jack Parker, a geologic engineer and author of “Practical Rock Mechanics for Miners,” told the judge he began evaluating drill cores, or samples from proposed mines, 60 years ago.

“Six-oh,” he said, to avoid confusion.

Parker rang a theme that subsequent witnesses would hammer hard: The Eagle Mine designs, he said, were based on partial data about the rock, optimistically interpreted, often by computer modeling rather than direct inspection.

Parker worked for decades as a miner and later became a consultant at hundreds of mines, most recently at White Pine Mine, 75 miles west of Houghton. He spoke in a whisper — nobody wanted to think about the buildup in his lungs — and his gravitas lent the legal proceedings a rocky heft. Even a witness later called by Kennecott, Idaho’s Wilson Blake, acknowledged that Parker is an industry “icon.”

Service Tax repeal appears certain


Capitol, Landing MI by Irina Vasiliu

Below you’ll find a news release from Governor Granholm regarding an agreement to add a 21.9% surcharge to the new Michigan Business Tax to replace the 6% Michigan Service Tax.

The Detroit Free Press and Detroit News have details on the agreement as well.

The Eleven Seconds to Midnight Gang rides again


Carousel by jnhkrawczyk

“We’ve got a shift starting in 36 hours that we’ve got to charge 6% more on … and I don’t know how to do it.”
-John Evans, president of Evans Distribution

Welcome to Michigan, where we somehow seem to be stuck in the Reality TV version of Groundhog Day: Your Government inAction. With just hours remaining before a confusing, unexplained and really random 6% Service Tax goes into effect, everyone who might have to pay the tax is watching the clock and wondering what Lansing will do. Read on for much more…

6% of x? Untangling Michigan’s Service Tax


Half Staff by Apocaplops

UPDATE Oct 25: Carol of ArborLaw.com writes:

I actually have the entire list of services descriptions covered by the law, on my blog at Arborlaw.com. When the law came out, I cross-referenced the NAICS codes (which are incorporated into the new law specifically by reference) with the section numbers from the bill and the expected new numbers for sections in Michigan Compiled Laws. If you want to see this to determine whether your business services are covered, go to http://arborlaw.com/blog/services-tax. (it’s a big list!)

Political analyst George Weeks writes that in decades of following how Lansing deals with financial crisis, I have never seen enactment of such a bizarre, crazy quilt, irrational, inexplicable, unfair and — most of all, confusing to taxpayers — tax.

Crain’s Detroit Business goes further, calling this The best tax plan lobbyists can buy. Law and accounting services are not taxed, but the broad category of management advice, strategic planning and financial planning and budgeting will be taxed. Hmmm. So a company buying consulting services to help it keep its doors open is making a “discretionary” purchase?

Like many in Michigan, we’re wondering which of the services we provide like online publications (probably not), internet consulting (probably so) or graphic design & marketing (who knows??!!) would be subject to the service tax.

Assuming that movements to repeal or change the tax fail, mLive’s blog gives some idea of what services might be subject to the tax come December 2007. The nebulous “consulting services” is made a whole lot clearer when you click over to see businesses classified under 5416 Management, Scientific, and Technical Consulting Services. It’s surprising to find that in addition the list includes items that are absolutely essential to the development of new businesses in Michigan like site selection, start-up consulting, marketing, and a host of science and technical services.

We invite you to add your thoughts, comments and suggestions for making some sense out of what looks like a fiscal nightmare for Michigan.

Shutdown averted … by a service tax


An appeal to reason by Apocaplops

StateGate seems like it might be nearing its conclusion with an 13th hour deal reached at 4 AM when legislators were apparently too tired to fight anymore. The LSJ reports:

“This budget agreement is the right solution for Michigan,” Gov. Jennifer Granholm said in a news release after the vote. “We prevented massive cuts to public education, health care and public safety while also making extensive government reforms and passing new revenue. With the state back on solid financial footing, we can turn our focus to the critical task of jumpstarting our economy and creating new jobs.”

Leaving aside the question (for now) of how much harder it will be to create jobs with a reputation as a state that is financially unstable, let’s take a look at what was added to an income tax hike – the “sales tax expansion”, a 6% tax on services. The Detroit News lists some of the services that might be taxed in New levy to tax 23 services.

The list appears to make little sense, with ski resorts subject to the tax but not golf course, janitorial service providers but not plumbers, tanning but not haircuts and financial & business consulting but not legal and accounting services. What do you bet that TV ads won’t be subject … and also that we’ll be hearing a lot more like this from every industry affected?

“Any service tax should be across the board on all services and not single out specific areas of the economy,” Stephen Kircher, president of Boyne USA Resorts’ eastern operations, said in a statement.