In December, the Supreme Court heard oral arguments in B&B Hardware v. Hargis Industries. The case addresses the level of deference to be given to decisions from the Trademark Trial and Appeal Board, if any. We’ve discussed the issue a number of times at DuetsBlog. I’d love to provide you with breaking news, but still no ruling yet.

However, the Fifth Circuit provided us with an interesting decision regarding potential liability for use of trademarks as part of gripe sites. A gripe site is a broad term that essentially means a website created for one purpose, to criticize a company or individual. Many of these gripe sites utilize the trademark of the target of the criticism both on the website and as part of the URL. The target’s first impulse is usually to send a letter to get the website taken down. However, as former and founding Duetsblogger Dan Kelly reasoned, pursuing these website owners can cause more harm than good. On Monday, the Fifth Circuit provided a good example of why brand owners should be cautious in pursing gripe sites.

Clark Baker is an investigator with the Office of Medical and Scientific Justice (“OMSJ”). If you’re like me, you’ve never heard of either Mr. Baker or the OMSJ. The OMSJ identifies itself as an investigation agency which runs the HIV Innocence Group. According to the website, the group assists defendants who have been charged with HIV related crimes by exposing the failures and inadequacies of “HIV junk science.”

Unsurprisingly, not everybody agrees with some of the beliefs and statements of the OMSJ. Among these critics is Jeffrey Todd Deshong. Mr. Deshong runs the website HIV Innocence Group Truth, where Mr. Deshong critiques Mr. Baker, the OMSJ, and the opinions and scientific theories they utilize. The website incorporates the entirety of the OMSJ’s mark, but adds the word “truth” to the end. Equally unsurprising, the OMSJ does not like Mr. Deshong’s website and filed a federal complaint alleging trademark infringement on July 9, 2013.

The District Court for the Northern District of Texas granted the Defendant’s Motion to Dismiss on June 30, 2014 (order available here, h/t to Public Citizen). While many gripe site defendants prevail on First Amendment grounds, the court here ruled that the plaintiff failed to allege any facts that could support a claim for trademark infringement.

The court relied upon the Fourth Circuit’s decision in Lamparello v. Falwell, 420 F.3d 309, 313, for the proposition that:

when dealing with domain names, a court must evaluate an allegedly infringing domain name in conjunction with the content of the website identified by the domain name.

The court examined the allegations of the complaint, noting that (1) the websites do not look like each other; (2) Deshong’s website does not advertise any product or service: and (3) the sole purpose of the website is to criticize Baker and the OMSJ. The court concluded that none of the factual allegations could be construed as alleging that a person, upon viewing the content, could be confused as to the source of the website. The Fifth Circuit affirmed the district court’s opinion without additional analysis.

But what does this have to do with B&B Hardware? Substantively, not much. But what if Deshong had applied for a trademark for HIV INNOCENCE GROUP TRUTH in connection with “providing a website featuring information on HIV?” And what if OMSJ opposed, citing prior rights in the mark HIV INNOCENCE GROUP in connection with “providing a website featuring information on HIV?”

This hypothetical demonstrates the problems that could arise if Trademark Trial and Appeal Board decisions are considered conclusive as to the issue of a likelihood of confusion. Unlike a district court, the Board would not consider the content of the website unless it was referenced in the identification of services. It is likely that the plaintiff prevails in this hypothetical. However, in the district court, not only did the defendant win, but he won on a 12(b)(6) motion to dismiss. This isn’t due to a mistake made by either the Board or the district court, but instead the limited nature of the jurisdiction, legal issues, and discovery for proceedings before the Board.

Unfortunately, we’ll have to wait to see how B&B Hardware plays out, but there may be a few more gripe sites to discuss depending on the outcome.

Since last week, the internet has blown-up about what United States Supreme Court nominee Judge Brett Kavanaugh might decide regarding issues coming before the Supreme Court if he joined the highest Court of the land. As a judge on the D.C. Circuit, Judge Kavanaugh has been skeptical about the authority of administrative agencies. This could impact decisions rendered by the United States Patent and Trademark Office (“USPTO”).

Specifically, Judge Kavanaugh has been critical of the authority of the government agencies to promulgate regulations interpreting legislation. Judge Kavanaugh would likely find it inappropriate for an agency to fill in gaps left in a statute.  Judge Kavanaugh would likely chip away or do away with the Chevron doctrine. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). This doctrine refers to a defense invoked by a government agency that allows a court to show deference to the agency’s interpretation of a law that it administers.

Several years ago, the United States Supreme Court held that issue preclusion should apply (so long as the other elements of issue preclusion are met) when the trademark usages adjudicated by the Trademark Trial and Appeal Board (“TTAB”) are materially the same as those before the district court. B&B Hardware Inc. v. Hargis Indus., _ U.S. _, 135 S. Ct. 1293 (2015).  In other words, the decision of the TTAB can be binding on other courts. DuetsBlog has posted on this decision before:

Likelihood of Preclusion: Fallout From the Supreme Court Ruling on Likely Confusion and What Do Gripe Sites Have to Do with SCOTUS’s B&B Hardware Decision?

Justice Thomas and the late Justice Scalia disagreed with the majority in the B&B Hardware decision. In his dissent, Justice Thomas was troubled by the fact that the TTAB was not comprised of Article III judges. Instead, the judges serving on the TTAB lacked input from either the President of the United States or the Senate. The dissent believed that applying issue preclusion raised serious constitutional concerns.

Judge Kavanaugh appeared to have a similar view in connection with a decision related to an underlying decision rendered by the Copyright Royalty Board (“CRB”). He suggested that there was “a serious constitutional issue” with the way judges are appointed to the CRB. Judge Kavanaugh further wrote that “under the Appointments Clause, principal offices of the United States must be nominated by the President and confirmed by the Senate.” Judge Kavanaugh wrote that the CRB had acted arbitrarily.

It will be interesting to see what impact a Justice Kavanaugh (or whoever becomes the ultimate replacement for Justice Kennedy) will have on the USPTO and intellectual property issues in general.

We follow closely and write a lot about what goes on with the Trademark Trial and Appeal Board (TTAB) at the U.S. Patent and Trademark Office (USPTO); these ironmongers do too, really well.

Serious trademark and brand owners care about TTAB decisions because many trademark disputes begin and end there, as the TTAB determines the important right to federally register trademarks.

What I mean by beginning there is, discreetly-used third party conflicting marks “flying under the radar,” rise to another level of trademark enforcement importance for a trademark and brand owner when the user also seeks federal registration, almost requiring the opening opposition salvo.

Federally-registered trademark owners know the importance of protecting the federal trademark register, because what, and how many similar third party marks, are allowed for registration, can negatively impact the owner’s trademark strength, scope of rights, and enforcement success.

Trademark rights are dynamic, they’ll shrink or grow over time, depending on the landscape at the time of enforcement, so not limiting registration at the USPTO can have more negative impact on strength and scope than an single, discreet, unauthorized use of a confusingly similar mark.

Looking the other way at trademark applications landing within a brand owner’s legitimate scope of protection, indirectly sends the perhaps unintended message to the trademark world, and those who monitor it, that the owner willingly accepts the shrinkage of its trademark rights.

So, serious trademark owners watch for conflicting filings at the USPTO, and stand in the way of registration, until agreement can be reached on how to coexist without a likelihood of confusion.

What I mean by many trademark disputes ending at the TTAB is, most oppositions do not go to final decision, the vast majority settle with a mutually-beneficial coexistence agreement in place.

And, when they don’t, trademark and brand owners — who follow us here — also know that the importance of final TTAB decisions has been raised, as the U.S. Supreme Court recently opened the door to having certain TTAB decisions — through the application of issue preclusion — control the outcome of later federal district court infringement and dilution law suits.

Congratulations to the TTAB on reaching sixty years of dedicated service to trademark and brand owners, as we look forward to the interesting issues likely to be decided in 2018 and beyond.

As I reflect on the more than twenty-five years of my experience before the TTAB, at this point in time — spanning nearly half of the TTAB’s existence — I’ll have to say, the TTAB seems to be carefully and thoughtfully emulating the characteristics of a fine wine as it matures.

What are your predictions of the 2018 decisions that will stand out? Fraud? Functionality? Fame?

Will the TTAB revisit its previous perceived inability to address Constitutional issues, like say, dilution tarnishmentreligious text marks, or application of the Section 2(c) bar to prevent federal registration of political trademark speech, and, if not this coming year, when?

I’m thinking this will be the year of informational and failure to function decisions, how about you?

Looking forward to sharing the podium with Joel MacMull of the Archer firm (counsel for Simon Tam, where our friend Ron Coleman is a partner) to discuss “Trademark Registration and the First Amendment,” on September 28th at the Midwest IP Institute in Minneapolis.

As a drum roll leading up to that discussion, and since there is so much to digest in the recent Supreme Court decision in Tam, I thought I’d do a series of posts on the decision and its implications, beyond what I’ve already written.

In this first installment, my focus will be on critiquing (as a trademark type) the opinion of the Court, that is, the portion of the decision written by Justice Alito, to which all seven of the other Justices agreed (the ninth, Justice Gorsuch, did not participate in the decision).

In a nutshell, my principal problem with the Court’s opinion is that all eight Justices have conflated the federal government’s issuance of a Certificate of Registration with the underlying applied-for trademark. The Court ignored that the meaning of each is distinct.

The meaning of the underlying trademark is one thing, determined by how the relevant public perceives and understands the applied-for mark. As an aside, the Court seemed more interested in Mr. Tam’s intentions in using an admitted racial slur as a trademark.

Yet, the meaning of the Certificate of Registration is quite different. It signifies that the federal government has approved the applied-for trademark for registration and issued a federal registration “in the name of the United States of America.

It would be easier to accept and respect the decision of the Court had it acknowledged and attempted to explain why Congress is powerless under the Commerce Clause to regulate what the USPTO may issue “in the name of the United States of America.”

Perhaps the Court’s conflation in Tam should be no surprise, as a few years ago, the unanimous Supreme Court in B&B Hardware, essentially conflated the right to register a trademark with the right to use the trademark.

Another concerning aspect of the Court’s opinion is how it seriously overstated what was at issue in Tam. It held that in denying federal registration to a mark consisting of a racial slur, the disparagement clause of Section 2(a) of the Lanham Act “violates the Free Speech Clause of the First Amendment” because it “offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”

To be clear, the only speech even potentially banned under Section 2(a) of the Lanham Act relates to forbidding the use of the federal registration symbol — ® — next to the racial slur, because that symbol may not be used, unless a Certificate of Registration has been issued for the mark in question.

To the extent the ® symbol constitutes speech at all, the symbol ought to be considered government speech (which is outside First Amendment scrutiny), since federal governmental approval is required in order to use it in commerce.

The Court missed the point when it stated the obvious: “Trademarks are private, not government speech.” The better and more relevant question would have asked whether the ® symbol is purely private speech. Seems obvious to me it’s not.

While the underlying trademark has a certain meaning and constitutes private speech, the federal government’s issuance of a Certificate of Registration and allowing the use of the ® symbol to signify this fact, cannot fairly be considered private speech. Instead, by definition, it connotes governmental approval.

On this point, the Court was unconvincing when it cited a 55-year old concurring opinion from the late Federal Circuit Judge Giles Rich for the proposition “it is unlikely that more than a tiny fraction of the public has any idea what federal registration of a trademark means.”

In that case, Judge Rich claimed, at least in 1962: “The purchasing public knows no more about trademark registration than a man walking down the street in a strange city knows about legal title to the land and buildings he passes.”

In my experience, all sorts of folks know that the ® symbol cannot be used without first obtaining approval from the federal government. Goodness, Forbes writes about it, National Law Journal, admitted non-lawyers, and a multitude of others do too, including us.

Friends, what do you think, do the folks understand and appreciate that the ® symbol is special and cannot be used without first obtaining approval from the federal government?

We’ve written a lot over the years about Adidas’ three-stripe non-verbal, non-traditional trademark. Turns out, Adidas actually owns a federally-registered trademark for the verbal, spelled-out, look-for advertising equivalent too, called: The Brand With The 3 Stripes®.

We haven’t until now probed the meaning of “stripe” though: “A long narrow band or strip, typically of the same width throughout its length, differing in color or texture from the surface on either side of it.” Synonyms include, lines, bands, belts and bars, among others.

See where I’m headed? What is a reasonable scope of rights for this likely famous mark?

Interestingly, whether by strategic design or unintentional lack of consistency, Adidas has called versions of its three-stripe device mark at the USPTO, three parallel bands, three diagonal quadrilaterals, and three slanted quadrilateral bars too.




Whatever the verbiage though, the first time I encountered the competing Lululemon brand, my eyes were drawn to the consistent application of three parallel lines positioned on the upper chest/shoulder area of the shirt, leaving me to wonder why Adidas tolerates this non-functional marking and symbol, especially given its heavy enforcement appetite:

Turns out, Adidas spoke up a few years back when Lululemon applied to federally register a non-traditional trademark described as “three parallel bars applied to the front left-hand seam of the upper chest/shoulder area of the shirt, t-shirt, sweatshirt, sweater, tank-top or jacket,” as shown in the drawing below:


It’s curious that Lululemon chose to call the three parallel lines, “bands,” (Adidas verbiage) especially since during prosecution it described a “Three Stitch Design mark,” which seems more accurate, yet after convincing the USPTO that Lululemon had a distinctive non-traditional mark, Adidas came knocking and opposed anyway.

Having said that, Adidas knocked only so hard, as its mission appears to have been focused on preventing registration only, not use, since the use persists several years later. Wouldn’t you enjoy the opportunity to view the apparent settlement and coexistence agreement?

Had Adidas not opposed, or had Lululemon been able to defend the opposition, perhaps Lulu would be in a stronger position to do something about these Reef shoes that I initially mistook for an extension of the Lululemon brand (until spending more time handling them):


What do you think, do you suppose Reef shoes felt more comfortable adopting the three stitch device on shoes because Lulu has no non-traditional trademark registration and would have to establish non-functionality and common law rights to enforce, or perhaps, because Lulu has apparently stopped selling footwear and shoes?

Do you suppose that Reef shoes has focused on the registration of other non-traditional marks and refrained from seeking federal registration of its three stitch design because it doesn’t want to hear from Adidas?

Is it fair to say that the Adidas’ stripes, bands, and quadrilaterals don’t cast a shadow on stitches, at least when it comes to use, as opposed to registration?

Hello, B&B Hardware, and what do you have to say for yourself?

In 2014, the United States Supreme Court issued its decision in Alice Corp. v. CLS Bank, Inc.  While the decision is long and convoluted, the Alice decision effectively narrowed the scope of patentable subject matter by holding that algorithms, computational methods, and other mathematical principles are not eligible for patent protection where the purported invention essentially equates to instructing an existing generic computer to implement those abstract ideas.

Since the Alice decision came out, scores of software related patents have been invalidated based on Alice.  One author researched and concluded that 286 out of 345 patents that had appeared in front of Courts had been invalidated by June, 19, 2015–just one year after the Alice decision.  This represented an invalidation rate of 82.9% which, if applied across the full range of the approximately 240,000 patents that rely on computer implementation, suggests that only about 41,000 of those patents likely remain valid.

The video game industry is likely to see significant changes as a result of the Alice decision.  Two relatively recent and notable cases include Acceleration Bay LLC v. Activision Blizzard Inc. and White Knuckle Gaming v. Electronic Arts.  In the first case, Activision recently filed a motion to invalidate patents covering technology that allow players to connect and communicate inside the game.  The second case is currently being appealed to the Federal Circuit, but EA successfully convinced the district court that a patent relating to updating sports information in video games with real time states was invalid under Alice.

The lessons for game developers are two-fold.  First, don’t expect to obtain patent protection unless you are also developing specialized hardware which may be patentable.  And two, have your attorneys take a long hard look at any patents that are threatened against you or which are otherwise causing you concern.  There may be a good possibility that the patent is unlikely to survive  an Alice-based challenge.

-Martha Engel, Attorney

Today’s offices treat acronyms like linguistic yoga (TOTALLY).

ICYMI, they’re popular also in texts, tweets, and other “thumb-talking” activities.  LOL.  SMH.

Legislators are having fun with them lately too, for example the Personal Rights in Names Can Endure Act (PRINCE Act),  the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act), the Brewers Excise and Economic Relief Act (BEER Act), the Jumpstarting Our Business Sector Act  (JOBS Act), the Value Our Time Elections Act (VOTE Act), and last but not least the Accountability and Congressional Responsibility On Naming Your Motions Act (ACRONYM Act).  If you find these as amusing as I do, check out more of them in this article.

Acronyms are often abbreviations formed from the first initials of the words of a descriptive phrase.  Nevertheless, acronyms may be registerable unless  (1) “the wording it stands for is merely descriptive of the goods or services” and (2) it “is readily understood by relevant purchasers to be ‘substantially synonymous’ with the merely descriptive wording it represents.”  TMEP 1209.03.  An acronym will be considered “substantially synonymous” if it is an acronym for specific wording, the specific wording is merely descriptive of applicant’s goods or services, and the relevant consumer viewing the mark in connection with those goods or services will recognize it as an acronym of the descriptive wording.  Id.   So two important considerations that affect registerability of an acronym are the listing of the goods or services and the perception of the mark created by product packaging and/or marketing material relative to these goods or services.

A recent TTAB decision illustrates this concern.  The Trademark Trial and Appeal Board recently affirmed a refusal of CARS for “Computer software used for capturing road data and determining safe curve speeds for automobiles; Computer hardware used for capturing telemetry and road data” and “Software as a service featuring software for capturing road data and determining safe curve speeds for automobiles” on the basis that the mark is merely descriptive of the listed goods and services.  The specimen filed with this use-based application showed CARS as being an acronym for “Curve Advisory Reporting System.”  Given the use of the synonymous “automobiles” in this goods and services description, as well as the use on the specimen, the examiner found the mark to be descriptive and the Board agreed.  Perhaps if the application did not include “automobiles” in the description and the example of use provided with the application did not so directly tie the meaning of the acronym to the listed goods and services, this may have been allowed.

With the popularity of acronyms, marketing teams working together with their legal friends can develop a suitable strategy for the application for the mark and the mark’s use that can help guide an acronym towards federal protection.

-Wes Anderson, Attorney

Another installment of Apple surveillance: it appears the tech giant has enlisted a shell company to file trademark applications for its newest products. Problem is, they might be stuck there.

On October 27, Apple will hold a press event at its Cupertino, California headquarters, presumably to introduce new Macintosh computers. One rumored feature of the new MacBook Pro line of laptop computers is a touchscreen strip running along the top of the keyboard, which can change based on the application currently running.


Apple fans, ever eager to find the latest scoop on new products, have done their homework. Brian Conroy, an Irish trademark agent and solicitor, uncovered various foreign filings for the mark MAGIC TOOLBAR on his website, “The Trademark Ninja.” But the application for each application is a company named “Presto Apps America LLC,” and not Apple.

This includes a U.S. application in Class 9 identifying “Computers; computer hardware; computer software; computer peripheral devices; computer display screens and keyboards; electronic interfaces for use with computers” and claiming intent-to-use in U.S. commerce and priority based on a foreign application (in the combined jurisdiction of Belgium, the Netherlands, and Luxembourg – BeNeLux).

Conroy concludes this is a masquerade:

The [sic] applied for the Global protection THE DAY before the last day they could, and have applied to Non-Paris Convention countries at the start of this month.

By my calculations, just the outlay for this trademark application comes to €16,000

NOW. Because Apple already has trademarks for

  • Magic Keyboard
  • Magic Mouse
  • Magic Slate
  • Magic Trackpad

They would almost certainly be able to stop any other company applying for the trademark ‘Magic Toolbar’, on the basis it’s similar to their existing trademarks and likely to cause confusion.

So, another company would have to be 100% certified insane to spend €16,000 in outlay for a trademark application that someone with the clout of Apple was almost certain to be able to object to and defeat. And that’s the main reason that I’m putting my neck on the line and saying that ‘Presto Apps America LLC’ is actually Apple.

This may well be Apple trying to be clever, and conceal its new feature’s brand name – but what happens if it unveils the MAGIC TOOLBAR? Presumably, the cat is out of the bag, and Apple will want to assign the application to Apple, Inc. This may be more difficult than it seems – unlike trademark registrations, which are relatively straightforward to assign, intent-to-use trademark applications must be assigned “to a successor to the applicant’s business, or portion of the business to which the mark pertains, if that business is ongoing and existing,” according to TMEP § 501.01(a):

In an application under §1(b) of the Trademark Act, 15 U.S.C. §1051(b),  the applicant cannot assign the application before the applicant files an allegation of use (i.e., either an amendment to allege use under 15 U.S.C. §1051(c)   or a statement of use under 15 U.S.C. §1051(d),  except to a successor to the applicant’s business, or portion of the business to which the mark pertains, if that business is ongoing and existing.  Section 10 of the Trademark Act, 15 U.S.C. §1060; 37 C.F.R. §3.16.

This rule is made to prevent “horse trading” in ITU applications, such as applications filed merely to block a competitors mark or applications meant merely as “placeholders.” If an assignment does not meet these requirements, the trademark application – or any resulting registration – can be cancelled.

In other words, Apple would need to show Apple, Inc. acquired not just the trademark, but also the entire “business” of Presto Apps America LLC. It’s not immediately clear that there is any business associated with Presto Apps America. It is far more likely scenario that Presto Apps America is just meant to be the sort of “placeholder” this rule is designed to work against.

If the MAGIC TOOLBAR turns out to be real, I’ll be interested to see how Apple approaches the issue of ownership for these trademark applications.

I own a Samsung phone. Thankfully not a Note 7. My prior phone was a Samsung as well. Will my next one be a Samsung?

Samsung Fire

It’s safe to say that the Note 7 situation has been pretty disastrous. On the way back from a wedding last month, I heard an announcement made that hadn’t been made on my way out just a few days earlier. Each time passengers were boarding a flight, the gate attendants would announce that the FAA required all Note 7’s to be powered down throughout the entire flight. It’s never good when your product is suddenly singled out as being potentially unsafe for commercial flight. Samsung’s stock price promptly dropped a bit further.

The recalls were underway and replacements making their way into consumers hands. Then one of those replacements burst into flames on a plane in Louisville as the phone’s owner was powering it down. Then more stories about the replacements catching fire. Now Samsung has permanently halted production of one of its flagship phones and is working to provide either full refunds or a partial refund and a different Samsung phone.

Now it’s important to say that, of the over million Note 7 phones that have made it into consumers hands, there have been fewer than 100 fires to my knowledge. That’s not insignificant, but it is a very small percentage (on the flip side, the phone has only been out since August). And ethically, Samsung is doing the right thing. They aren’t throwing in behind Takata, Volkswagen, and General Motors in recent years.

Regardless there’s a huge cost. Not only are there roughly 2.5 million of these phones already made that will be going in the trash (hopefully they’ll be recycling as much of each phone as possible), but the brand is sure to take a hit as well. That hit is beyond just the reputational damage of selling a phone that catches fire and the incompetence (perceived or real) of issuing a replacement that catches fire.

Here are a few thoughts on why this is such a huge problem for Samsung even though they are doing their best to make things right:

Remember Blackberry?

Blackberry went from being a top seller to essentially nothing in the span of a few years. There’s no room to rest on your lead. The cell phone industry is notoriously cutthroat and fickle. Everything happens fast and there is not much time to recover. Going into this Samsung had the largest global market share of any smartphone company for the last three years running. That might help soften the blow, but big trees fall hard. Blackberry is a case in point.

Botched Recall.

Consumers of cutting edge tech products usually expect a few bugs and are willing to ride things out while the kinks are worked through. Spontaneous combustion usually isn’t one of the bugs you expect, but Samsung did the right thing and recalled the phones to fix the issue. A recall may be an inconvenience, but done quickly and efficiently, it may actually build credibility.

The problem is, they didn’t fix the issue. Their customers went the trouble of dealing with the recall, saving data, perhaps going without a phone for a few days, only to find the replacement was potentially just as problematic as the original.

There are obvious pressures to get the issue solved quickly, but you lose a great deal of credibility and goodwill when you say you’ve fixed the problem when you haven’t. The problem with the replacements may be the same distinct from the original problem, but that doesn’t matter when the symptom is a fireball you most likely don’t want. To the public, it looks like you were careless.


The Note 7 operates on the Android system, as do a plethora of other phones. iPhone owners purchase Apple operating system and the seamless connection to their other Apple products along with the iPhone itself. They may be more willing to wait for a solution, take an less recent upgrade, or wait for the next iPhone product release. When it comes to phones, Samsung doesn’t have that same sort of economic moat . That brings me to the next point:

Immediate Availability of Other Flagships.

Any number of flagship phones are available right now and operating the Android system. Google just announced its new Pixel phone, for one. There’s no need to wait around or take that slightly older upgrade unless you just absolutely love Samsung products, hardware, layout, etc. Just check out the competition.

Nature of the Flagships.

The R & D budget tends to focus on the flagships. The flagship phones get pretty drastic overhauls every couple of years and innovations are incorporated every year, kind of like the car industry in the 50’s and 60’s where you could tell a model year by the back up lights. The designs and innovations that make it into this year’s flagship flow down through the company’s other series in the following years.

This is a particular problem for Samsung as it appears that they can’t reproduce the problem and aren’t sure exactly why the Note 7 offers the unexpected bonus feature of also being a portable fire source. This has the potential to dam, or at least slow, that flow of intellectual property into Samsung’s other offerings. If some suspect features were already incorporated into other designs, it may halt the production of that series.

That’s more bad news because the reputational harm may not be limited to the here and now. Some of next year’s customers may choose a competitor, not for fear of their phone catching fire or a lack of faith in Samsung, but because those other phones might not get the planned upgrade, might be missing certain features that others offer, or might not be out at all.

Phone Cycles.

Most people hold onto their phones for a couple of years before upgrading unless they have to have the latest or happen to drop their current phone in a puddle. These phones cost hundreds of dollars and Samsung may be missing out on a large segment of the current cycle. The flagships tend to be the real money makers too, so by pulling the flagship they’re really taking an economic hit this cycle.

Moreover, most smartphone users seem to either go for the hottest new thing or stick with brand they know and are comfortable with. They are not particularly loyal (iPhone excepted), but we are creatures of habit. Those purchasers that Samsung loses this cycle may, or may not come back next cycle. If they’re happy with whatever device they purchase, they may just buy the upgraded version next time around rather than return to Samsung. This is a huge opportunity for Motorola, Sony, Huawei, LG, Apple, etc.


I like Samsung products, and I understand that the pressures to innovate in the smartphone industry are exceedingly high. I don’t think Samsung was particularly careless, just that they pushed a little past the limit of their technology. But maybe the limit is really only clear in hindsight.

I’ve always considered my options when buying a new phone, and I will when I purchase a new one next year. I’ll consider Samsung like I have in the past. It just might be the best brand next year. I know all smartphone manufacturers will be taking second looks at their products, but I’m fairly certain Samsung will be taking fourth and fifth looks at theirs. Samsung will still be around in a year, no doubt. But they may not be at the top, and their future may be a little more questionable.

Video games have been an existing and growing component of popular culture for my entire life.  I literally cut my teeth on the Atari 2600 while I was still a toddler.  From there I spread into bowling alley arcades, Nintendo, PC Games, Playstation, Nintendo 64, Playstation 2, Playstation 3, and Playstation 4.  Over that time, the gaming industry grew in popularity, volume, and innovation.

Over the past several years and over the following few years, there have been and are likely to be significant new developments that are going to expand the gaming industry even further.  Simply put, its an exciting time to be alive for a “gamer.”  So called eSports appear to be gaining a significant foothold such that they will be regularly broadcast on TBS on Friday nights.  Vegas is “looking to video games” to bring in a new crowd of gamblers.  And it appears that hardware and software capabilities are almost finally to the point where VR games are something people will actually want to play.

The rise of the games is also an exciting time for the legal profession.  Each of these new avenues of gaming promise to provide new and interesting legal issues.  For example, top gaming talent is likely to end up working with agents similar to sports stars.  The gambling angle is likely to raise tricky legal issues regarding whether the games are “games of skill” or “games of chance.”  And one can only start to imagine the issues that will begin to arise in an entirely virtual world.  (“Virtual infringement,” anyone?)

Being both a gamer and an attorney, I’m excited for the possibilities, and I’d love to hear from any readers with thoughts on what they think the future may hold.