4 ms·

You would have to prove the lawyer knew. It sounds difficult to prove short of an email exchange and I have no idea how the courts work but hopefully you can't

You would have to prove the lawyer knew. It sounds difficult to prove short of an email exchange and I have no idea how the courts work but hopefully you can't get access to a company's emails just by filing a suit based on "I'm pretty sure"

pbhjpbhj 10y ago
You might argue "due diligence", that as Lets Encrypt appear on a simply internet search the lawyer's claimed ignorance [if they do claim ignorance] shows a wilful act to hide from knowing that it was already an established trademark. There is no way - on balance of probabilities - that any company enlists a trademark lawyer to register a mark without that lawyer first doing an internet search (eg for associations with nefarious businesses [or one's powerful enough to sue you], or negative associations with crime, etc.). Google could probably provide the information about such a search being made from the lawyer's offices!
- josho 10y ago
  I've received legal advice to take care not to discover patents. Because if we knew of the existence of a patent then it could be shown that we were knowingly infringing on the patent. I wonder if trademark law has similar incentives to behave irrationally.
  - DannyBee 10y ago
    " Because if we knew of the existence of a patent then it could be shown that we were knowingly infringing on the patent." This legal advice was been valid at one point. However, nowadays, willful infringement requires more than just knowledge. It has for a few years, but the most recent supreme court decision also strongly supports this. See Halo Electronics v. Pulse electronics (http://www.supremecourt.gov/opinions/15pdf/14-1513_db8e.pdf http://www.supremecourt.gov/opinions/15pdf/14-1513_db8e.pdf) in the concurrence: First, the Court’s references to “willful misconduct” do not mean that a court may award enhanced damages simply because the evidence shows that the infringer knew about the patent and nothing more. Second, also note: “failure of an infringer to obtain the advice of counsel . . . may not be used to prove that the accused infringer wilfully infringed.”
combatentropy 10y ago
If not perjury, then negligence. I ran into Let's Encrypt without looking for it. It kept popping up in the tech news section over the past year. Maybe lawyers don't peruse the tech news, not even tech lawyers. Well, the lawyer's client most likely does. And really, the lawyer is just filing the request on the client's behalf. Besides it doesn't matter. A simple web search would have turned up Let's Encrypt. Not doing a simple web search before filing a trademark request is negligence.
- sbarre 10y ago
  Particularly a lawyer for a competing service.

pbhjpbhj 10y ago

You might argue "due diligence", that as Lets Encrypt appear on a simply internet search the lawyer's claimed ignorance [if they do claim ignorance] shows a wilful act to hide from knowing that it was already an established trademark. There is no way - on balance of probabilities - that any company enlists a trademark lawyer to register a mark without that lawyer first doing an internet search (eg for associations with nefarious businesses [or one's powerful enough to sue you], or negative associations with crime, etc.). Google could probably provide the information about such a search being made from the lawyer's offices!

josho 10y ago
I've received legal advice to take care not to discover patents. Because if we knew of the existence of a patent then it could be shown that we were knowingly infringing on the patent. I wonder if trademark law has similar incentives to behave irrationally.
- DannyBee 10y ago
  " Because if we knew of the existence of a patent then it could be shown that we were knowingly infringing on the patent." This legal advice was been valid at one point. However, nowadays, willful infringement requires more than just knowledge. It has for a few years, but the most recent supreme court decision also strongly supports this. See Halo Electronics v. Pulse electronics (http://www.supremecourt.gov/opinions/15pdf/14-1513_db8e.pdf http://www.supremecourt.gov/opinions/15pdf/14-1513_db8e.pdf) in the concurrence: First, the Court’s references to “willful misconduct” do not mean that a court may award enhanced damages simply because the evidence shows that the infringer knew about the patent and nothing more. Second, also note: “failure of an infringer to obtain the advice of counsel . . . may not be used to prove that the accused infringer wilfully infringed.”

combatentropy 10y ago

If not perjury, then negligence. I ran into Let's Encrypt without looking for it. It kept popping up in the tech news section over the past year. Maybe lawyers don't peruse the tech news, not even tech lawyers. Well, the lawyer's client most likely does. And really, the lawyer is just filing the request on the client's behalf. Besides it doesn't matter. A simple web search would have turned up Let's Encrypt. Not doing a simple web search before filing a trademark request is negligence.

sbarre 10y ago
Particularly a lawyer for a competing service.