7/25. President Bush nominated Boyden Gray to be the Representative of the U.S. to the European Union. He is a partner in the Washington DC office of the law firm of Wilmer Cutler Pickering Hale & Dorr. Gray was the White House Counsel to the elder President Bush. Before that, he worked for then Vice President Bush. See, White House release and release.

More recently, Gray has represented the interests of software companies supportive of Microsoft in antitrust related matters. The EU's antitrust regulators continue to focus their attention upon Microsoft.

For example, Gray participated in an amicus curiae brief [35 pages in PDF] filed with the U.S. Court of Appeals (DCCir) in the Microsoft antitrust case. It was the brief of the Association for Competitive Technology and Computing Technology Industry Association. This brief supported Microsoft.

See also, Gray letter of March 26, 1999. See also, photograph of Gray, by Declan McCullagh.

7/25. The Federal Communications Commission (FCC) stated in a release [PDF] that FCC Chairman Kevin Martin "announced the creation of an FCC-NARUC Task Force on VoIP Enhanced 911 (E911) enforcement. Staff from both the FCC and State Public Utility Commissions will serve as members, working closely with representatives from the public safety community, including the Association of Public Safety Communications Officials (APCO) and the National Emergency Number Association (NENA)."

The FCC release makes no mention of including representatives of VOIP service providers, software developers, equipment makers, or VOIP users in this task force, or this process. The FCC release does not name the individual members of the task force.

Martin (at right) is in Austin, Texas for a conference of the National Association of Regulatory Utility Commissioners (NARUC). See, conference web site.

The FCC recently announced that it will impose the PSTN based E911/911 regulatory regime upon interconnected voice over internet protocol service providers. The FCC adopted a First Report and Order and Notice of Proposed Rulemaking at its meeting of May 19, 2005. The FCC released the text [90 pages in PDF] of this item on June 3, 2005. This proceeding is titled "In the Matter of IP-Enabled Services" and numbered WC Docket No. 04-36. This order and NPRM also assigns a second proceeding title, "E911 Requirements for IP-Enabled Service Providers", and a second number, WC Docket No. 05-196. This item is numbered FCC 05-116. The 2004 NPRM is numbered FCC 04-28.

See, story titled "FCC Releases VOIP E911 Order" in TLJ Daily E-Mail Alert No. 1,148, June 6, 2005.

See also, stories titled "FCC Adopts Order Expanding E911 Regulation to Include Some VOIP Service Providers", "Summary of the FCC's 911 VOIP Order", "Opponents of FCC 911 VOIP Order State that the FCC Exceeded Its Statutory Authority", and "More Reaction to the FCC's 911 VOIP Order", in TLJ Daily E-Mail Alert No. 1,139, May 20, 2005.

The order begins with the statement, "we require providers of interconnected VoIP service to provide E911 services to all of their customers as a standard feature of the service, rather than as an optional enhancement. We further require them to provide E911 from wherever the customer is using the service, whether at home or away from home." (See, Paragraph 1.)

It also states that "We make no findings today regarding whether a VoIP service that is interconnected with the PSTN should be classified as a telecommunications service or an information service under the Act." However, this order begins a piecemeal application of telecommunications regulations to internet protocol services.

7/25. The U.S. Court of Appeals (8thCir) issued its opinion [14 pages in PDF] in Frosty Treats v. Sony Computer Entertainment America, a trademark case. Sony incorporated some of Frosty Treats's marks into some of its computer games. The District Court granted summary judgment to Sony on all issues. The Court of Appeals largely affirmed. Frosty Treats recovers nothing.

Frosty Treats operates ice cream trucks. It sells ice cream products on the street. The sides of these trucks carry the "Frosty Treats" name and logo, and a "Safety Clown" graphic that cautions children about crossing the street safely. Sony Computer Entertainment America (Sony) makes video games for its Sony PlayStation. Sony made a series of games, titled "Twisted Metal", that depict ice cream trucks with Frosty Treats' name and graphics.

Sony offers this description of its game titled "Twisted Metal: Head-On": This game "puts you behind the wheel of one of 14 destructive vehicles, each equipped with machine guns, turbo boost, and a unique special attack. Once you select a vehicle, you can take out your road rage on opponents in 12 wild arenas. The game also offers multiplayer modes for up to eight players through a wireless connection."

Frosty Treats did not register trademarks with the U.S. Patent and Trademark Office (USPTO).

Frosty Treats filed a complaint in U.S. District Court (WDMO) against Sony alleging violation of state and federal laws regarding trademark infringement and dilution, and unfair competition. The District Court granted summary judgment to Sony.

Frosty Treats appealed. The Court of Appeals affirmed.

First, the Court of Appeals addressed the District Court's holdings that neither the "Frosty Treats" nor the "Safety Clown" marks are entitled to protection.

The District Court held that the "Frosty Treats" mark is not entitled to trademark protection because it is generic, or in the alternative, it is descriptive without secondary meaning. The Court of Appeals affirmed.

However, the Court of Appeals reversed the District Court's holding that the "Safety Clown" mark is not subject to protection. The District Court reasoned that because the clown serves the purpose of enhancing safety by directing children to cross at the rear, the graphic is functional and therefore not subject to protection.

The Court of Appeals explained that "the district court evaluated the issue using the colloquial meaning of ``functional´´ rather than the specialized meaning that it has in trademark law. In trademark law, "`a product feature is functional, and cannot serve as a trademark, if it is essential to the use or purpose of the article or if it affects the cost or quality of the article.´" (Citations omitted from this and other quotations.)

"The functionality doctrine serves as a buffer between patent law and trademark law by preventing a competitor from monopolizing a useful product feature in the guise of identifying itself as the source of the product." The Court of Appeals continued that "There is no evidence that the exclusive use of the Safety Clown graphic would deny Frosty Treats's competitors the ability to compete effectively or place competitors at any non-reputational disadvantage. ... We therefore conclude that the district court erred in granting summary judgment on the ground that the clown was functional."

Since the Court of Appeals held that the "Frosty Treats" mark is not protectable, it did not analyze whether Sony infringed this mark. However, since it held that the "Saftey Clown" mark is subject to protection, it proceeded with its analysis of infringement.

The Court of Appeals wrote that the trademark infringement claim hinges on whether there is a likelihood of confusion. It applied the 8th Circuit's six criteria: "(1) the strength of the owner's mark; (2) the similarity between the owner's mark and the alleged infringer's mark; (3) the degree to which the products compete with each other; (4) the alleged infringer's intent to 'pass off' its goods as those of the trademark owner; (5) incidents of actual confusion; and (6) the type of product, its costs and conditions of purchase."

It concluded that Frosty Treats "failed to present sufficient evidence to create a triable issue as to the likelihood of confusion between the trade dress of Frosty Treats's trucks or its Safety Clown on the one hand and any depictions of trucks or clowns in SCEA's Twisted Metal games on the other."

Finally, the Court of Appeals addressed the trademark dilution claims. The District Court held that the federal law claim fails because federal law requires, at 15 U.S.C. § 1125(c), that the marks and trade dress be famous, and Frosty Treats's were not famous.

As for trademark dilution under the state law of Missouri, the Court of Appeals noted that fame is not required under the state statute. It nevertheless affirmed the District Court's summary judgment for Sony on this issue "because the marks and trade dress at issue are so dissimilar that it would be clearly erroneous to hold that there was a likelihood of dilution."

There is an argument, advanced by writers such as Lawrence Lessig, that creativity is inhibited by the propertization of culture. That is, the creators of movies, documentaries, and other media, are obstructed in their work by the legal requirements of obtaining permissions from all of the holders of any intellectual property rights that may be implicated, however slightly, by their new creations. Lessig devotes a chapter to the problems faced by the maker of a documentary film on Wagner's Ring Cycle who included, in the background, a few seconds of a television broadcast of the copyrighted program titled "The Simpsons". See, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity [Amazon].

Perhaps this case provides some small support for the argument that the free culture advocates are alarmists, and overstate the threat to creativity. In this case the intellectual property holder sued the subsequent creator, and got nothing, except a huge bill for legal services.

This case is Frosty Treats, Inc., et al. v. Sony Computer Entertainment America, Inc., U.S. Court of Appeals for the 8th Circuit, App. Ct. No. 04-2502, an appeal from the U.S. District Court for the Western District of Missouri, Judge Scott Wright presiding.

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The House will meet at 9:00 AM for morning hour, and at 10:00 AM for legislative business. It will consider HR 3283, the "United States Trade Rights Enforcement Act". See, Republican Whip Notice.

The Senate will meet at 9:45 AM. It will resume consideration of S 1042, the defense authorization bill.

LOCATION CHANGE. 9:00 AM - 5:00 PM. Day one of a two day roundtable hosted by the Copyright Office on orphan works. See, notice in the Federal Register, July 7, 2005, Vol. 70, No. 129, at Pages 39341 - 39343. Location: Room 2237, Rayburn Building, Capitol Hill.

9:30 AM. The Senate Judiciary Committee may hold a hearing titled "Comprehensive Immigration Reform". The scheduled witnesses include Sen. Edward Kennedy (D-MA), Sen. John McCain (R-AZ), Sen. Jon Kyl (R-AZ), Sen. John Cornyn (R-TX), Michael Chertoff (Secretary of Homeland Security), Elaine Chao (Secretary of Labor), Tamar Jacoby (Manhattan Institute), Gary Endelman, Hal Daub (American Health Care Association). The SJC frequently cancels hearings without notice. See, notice. Press contact: Blain Rethmeier (Specter) at 202 224-5225, David Carle (Leahy) at 202 224-4242 or Tracy Schmaler (Leahy) at 202 224-2154. Location: Room 226, Dirksen Building.

10:00 AM. The Senate Banking Committee will hold hearings on the nominations of Rep. Christopher Cox (R-CA), Roel Campos, and Annette Nazarath to be Commissioners of the Securities and Exchange Commission (SEC). Location: Room 538, Dirksen Building.

10:00 AM - 12:00 NOON. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for the ITU-D's meetings of Study Group 1 and Study Group 2, which will take place in September, Geneva, on September 6-9 and 12-15, 2005. See, notice in the Federal Register, July 8, 2005, Vol. 70, No. 130, at Pages 39544 - 39545. Location: Room 2533A, State Department.

12:15 - 1:30 PM. The Chamber of Commerce will host a luncheon program titled "The Wireless Revolution: Enriching the Global Economy with Mobile Broadband and Smart Devices". The speaker will be Irwin Mark Jacobs, Chairman of Qualcomm. The price to attend ranges from free to $145. For more information, contact Natalie Safertal at 202-463-5500. See, notice. Location: Chamber of Commerce, 1615 H Street, NW.

2:15 PM. The Senate Foreign Relations Committee will hold a business meeting. The Committee's agenda includes consideration of ratification of the Council of Europe Convention on Cybercrime, which was signed by the U.S. on November 23, 2001. The agenda also includes consideration of numerous nominations, including those of Josette Shiner to be Under Secretary of State (Economic, Business, and Agricultural Affairs), and Kristen Silverberg to be an Assistant Secretary of State (International Organization Affairs). Location: Room S-116, Capitol Building.

2:30 PM. The Senate Judiciary Committee's (SJC) Subcommittee on Intellectual Property has scheduled another hearing titled "Perspective on Patents: Harmonization and Other Matters". The scheduled witnesses include Gerald Mossinghoff (law firm of Oblon Spivak, and former head of the USPTO), Todd Dickinson (General Electric Company, and former head of the USPTO), Christine Siwik (law firm of Rakoczy Molino Mazzochi & Siwik, on behalf of Barr Laboratories), Marshall Phelps (Microsoft), Charles Phelps (University of Rochester, on behalf of the Association of American Universities), and David Beier (Amgen). The SJC frequently cancels hearings without notice. Press contact: Blain Rethmeier (Specter) at 202 224-5225, David Carle (Leahy) at 202 224-4242 or Tracy Schmaler (Leahy) at 202 224-2154. Location: Room 226, Dirksen Building.

2:30 PM. The Senate Environment and Public Works Committee's Subcommittee on Superfund and Waste Management will hold a hearing on electronics waste. Location: Room 406, Dirksen Building.

RESCHEDULED FROM JULY 25. 4:00 PM. The Senate Judiciary Committee (SJC) may hold a hearing on the nomination of Timothy Flanigan to be the Deputy Attorney General. The SJC frequently cancels hearings without notice. Press contact: Blain Rethmeier (Specter) at 202 224-5225, David Carle (Leahy) at 202 224-4242 or Tracy Schmaler (Leahy) at 202 224-2154. Location: Room 226, Dirksen Building.

The House will meet at 10:00 AM for legislative business. It may take up HR 3045, the "Dominican Republic-Central America-United States Free Trade Agreement Implementation Act". See, Republican Whip Notice.

9:00 AM - 5:00 PM. Day two of a two day roundtable hosted by the Copyright Office on orphan works. See, notice in the Federal Register, July 7, 2005, Vol. 70, No. 129, at Pages 39341 - 39343. Location: Room 2237, Rayburn Building, Capitol Hill.

9:00 AM. Day one of a two day meeting of the Bureau of Industry and Security's (BIS) Information Systems Technical Advisory Committee. The agenda includes "Department of Energy's uses of High Performance Computers", "Ethernet Technology Trends" and "Nanotechnology Update". Part of the meeting will be close to the public. See, notice in the Federal Register, July 11, 2005, Vol. 70, No. 131, at Pages 39720 - 39721. Location: Room 3884, Department of Commerce, 14th Street between Constitution and Pennsylvania Avenues, NW.

9:30 AM. The Senate Judiciary Committee may hold a hearing titled "FBI Oversight". The scheduled witnesses include Robert Mueller (Director of the Federal Bureau of Investigation), Glenn Fine (Inspector General of the Department of Justice), Lee Hamilton (Woodrow Wilson International Center for Scholars), William Webster (law firm of Milbank Tweed, and former FBI Director), and John Russack (Office of the Director of National Intelligence). The SJC frequently cancels meetings without notice. See, notice. Press contact: Blain Rethmeier (Specter) at 202 224-5225, David Carle (Leahy) at 202 224-4242 or Tracy Schmaler (Leahy) at 202 224-2154. Location: Room 226, Dirksen Building.

10:00 AM. The House Ways and Means Committee's Subcommittee on Health will hold a hearing titled "Health Care Information Technology". See, notice. Location: Room 1100, Longworth Building.

10:00 AM. The House Judiciary Committee (HJC) will meet to mark up several bills, including HR 3402, the "Department of Justice Appropriations Authorization Act, Fiscal Years 2006 through 2009". The meeting will be webcast by the HJC. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

12:00 NOON - 2:00 PM. The New Republic will host a panel discussion titled "Updating America's Telecommunications Laws: What's In It For Us?" The speakers will be Sen. Mark Pryor (D-AR), Sen. John Kerry (D-MA), Sen. Joe Lieberman (D-CT), Michael Crowley (Senior Editor of The New Republic), Kim Anderson (National Education Association), Harry Alford (National Black Chamber of Commerce), George Kohl (Communications Workers of America), and Clyde Prestowitz (Economic Strategy Institute). Lunch will be served. For more information, contact Joan Daly at 703 407-3204 or jdaly at tnr dot com. Location: Room 11, Dirksen Building, Capitol Hill.

2:00 - 3:00 PM. The President's National Security Telecommunications Advisory Committee (NSTAC) will meet by teleconference. The meeting will be partially closed. See, notice in the Federal Register, July 12, 2005, Vol. 70, No. 132, at Page 40052, and notice in the Federal Register, July 20, 2005, Vol. 70, No. 138, at Page 41778.

2:30 PM. The Senate Commerce Committee will hold a hearing on S 1372, the "Fairness, Accuracy, Inclusivity, and Responsiveness in Ratings Act of 2005", a bill to regulate television ratings services. The witnesses will be George Ivie (Media Rating Council), Susan Whiting (Nielsen Media Research), Ceril Shagrin (Univision), Pat Mullen (Tribune Broadcasting), Kathy Crawford (MindShare Worldwide), and Gale Metzger. See, notice. Press contact: Melanie Alvord (Stevens) (202) 224-8456 or Melanie_Alvord at commerce dot senate dot gov, or Andy Davis (Inouye) at 202 224-4546 or Andy_Davis at commerce dot senate dot gov Location: Room 253, Russell Building.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rule Making (FNPRM) regarding advancing the date on which all new television receiving equipment must include the capability to receive over the air DTV broadcast signals from July 1, 2007, to a date no later than December 31, 2006. The FCC adopted and released this item on June 9, 2005. This item is FCC 05-121 in ET Docket No. 05-24. See, notice in the Federal Register, July 6, 2005, Vol. 70, No. 128, at Pages 38845 - 38848. See also, story titled "FCC Adopts Order and NPRM Regarding Its Digital Tuner Rules" in TLJ Daily E-Mail Alert No. 1,153, June 14, 2005.

The House will meet at 10:00 AM for legislative business. It may take up HR 3045, the "Dominican Republic-Central America-United States Free Trade Agreement Implementation Act". See, Republican Whip Notice.

9:00 AM. Day two of a two day meeting of the Bureau of Industry and Security's (BIS) Information Systems Technical Advisory Committee. The agenda includes "Department of Energy's uses of High Performance Computers", "Ethernet Technology Trends" and "Nanotechnology Update". Part of the meeting will be close to the public. See, notice in the Federal Register, July 11, 2005, Vol. 70, No. 131, at Pages 39720 - 39721. Location: Room 3884, Department of Commerce, 14th Street between Constitution and Pennsylvania Avenues, NW.

9:30 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The SJC frequently cancels meetings without notice. The agenda includes S __, the "Personal Data Privacy and Security Act of 2005", S 751, the "Notification of Risk to Personal Data Act", and S 1326, the "Notification of Risk to Personal Data Act". See, notice. The SJC rarely follows its published agenda. Press contact: Blain Rethmeier (Specter) at 202 224-5225, David Carle (Leahy) at 202 224-4242 or Tracy Schmaler (Leahy) at 202 224-2154. Location: Room 226, Dirksen Building.

10:00 AM. The Senate Commerce Committee (SCC) will meet to mark up S 1408, the "Identity Theft Protection Act". See, notice. Press contact: Melanie Alvord (Stevens) (202) 224-8456 or Melanie_Alvord at commerce dot senate dot gov, or Andy Davis (Inouye) at 202 224-4546 or Andy_Davis at commerce dot senate dot gov. Location: Room 253, Russell Building.

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Commerce, Trade, and Consumer Protection will hold a hearing titled "Data Security: The Discussion Draft of Data Protection Legislation". The hearing will be webcast by the HCC. See, notice. Press contact: Larry Neal at 202 225-5735. Location: Room 2123, Rayburn Building.

10:00 AM - 3:00 PM. The Federal Communications Commission's (FCC) Technological Advisory Council will meet. See, notice in the Federal Register, March 25, 2005, Vol. 70, No. 57, at Page 15316. See also, notice in the Federal Register, July 6, 2005, Vol. 70, No. 128, at Pages 38928. Location: FCC, 445 12th Street, SW, Commission Meeting Room (TW-C305).

10:00 AM - 12:00 NOON. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for the Americas Regional Preparatory Meeting for the World Telecommunication Development Conference (WTDC-06) in Lima, Peru, from August 9-11, 2005. See, notice in the Federal Register, June 22, 2005, Vol. 70, No. 119, Page 36224. Location: DOS, Room 2533A.

10:30 AM -12:30 PM. The Internet Governance Project and others will host a panel discussion titled "Regime Change on the Internet? Internet Governance After WGIG". See, notice. See also, the United Nation's (UN) Working Group on Internet Governance (WGIG). Location: Syracuse University's Paul Greenberg House, 2301 Calvert Street, NW.

2:00 - 5:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "How to Do Legal Research on the Internet: Find It Fast and Free". The speakers will be Carole Levitt and Mark Rosch of Internet for Lawyers. The price to attend ranges from $80-$135. For more information, call 202-626-3488. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

2:00 - 4:00 PM. The Department of tate's (DOS) International Telecommunication Advisory Committee's (ITAC) U.S. Study Group A will meet to prepare positions for the next meeting of ITU-T's Study Group 3 (tariff and accounting principles for international telecommunication services), which will be on September 12-16, 2005, in Geneva, Switzerland. To participate by teleconference, contact minardje at state dot gov. See, notice in the Federal Register, July 8, 2005, Vol. 70, No. 130, at Pages 39544 - 39545. Location: AT&T, Suite 210, 1133 21st Street, NW.

2:30 PM. The Senate Commerce Committee will hold a hearing titled "Issues Related to MGM v. Grokster". The witnesses will be Adam Eisgrau (P2P United), Gregory Kerber (Ch/CEO, Wurld Media), Mark Heesen (President, National Venture Capital Association), Dave Baker (VP Law & Public Policy, Earthlink), Mitch Bainwol (Ch/CEO, Recording Industry Association of America), and Fritz Attaway (EVP, Motion Picture Association of America).See, notice. Press contact: Melanie Alvord (Stevens) (202) 224-8456 or Melanie_Alvord at commerce dot senate dot gov, or Andy Davis (Inouye) at 202 224-4546 or Andy_Davis at commerce dot senate dot gov Location: Room 253, Russell Building.

The House will may meet at 10:00 AM for legislative business. See, Republican Whip Notice.

12:15 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch titled "Defying Classification: Can the Information Services/Telecommunications Services Regulatory Dichotomy Survive in an IP World?". The speakers will be Jonathan Askin (General Counsel of Pulver.com), David Hickey (Legislative Counsel to Rep. Cliff Stearns (R-FL), Alexandra Wilson (Cox Enterprises), Jack Zinman (SBC Communications), and Drew Caplan (Nextel). No RSVP requested. For more information, contact Phil Marchesiello at pmarchesiello at akingump dot com or 202 887-4348 or Natalie Roisman natalie at roisman at fcc dot gov. Location: Akin Gump, 1333 New Hampshire Ave., NW, 10th Floor.

The House will not meet on Monday, August 1 through Monday, September 5. See, House calendar.

The Senate will not meet on Monday, August 1 through Monday, September 5. See, Senate calendar.

EXTENDED TO OCTOBER 1. Deadline for the National Cable & Telecommunications Association's (NCTA) and Consumer Electronics Association (CEA) to file their first round of status reports with the Federal Communications Commission (FCC) regarding progress in talks regarding the feasibility of a downloadable security solution for integrating navigation and security functionalities in cable set top boxes. See, FCC's Second Report and Order [37 pages in PDF] adopted and released on March 18, 2005. This order is FCC 05-76 in CS Docket No. 97-80. See also, FCC release [PDF] summarizing this order, and story titled "FCC Again Delays Deadline for Integrating Navigation and Security Functionalities in Cable Set Top Boxes" in TLJ Daily E-Mail Alert No. 1,099, March 21, 2005. See, notice of extensions (DA 05-1930) [2 pages in PDF].

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding the exchange of customer account information between local exchange carriers (LECs). This FNPRM is FCC 05-29 in CG Docket No. 02-386. See, notice in the Federal Register, June 1, 2005, Vol. 70, No. 104, at Pages 31406 - 31409.

10:00 AM - 12:00 NOON. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for the ITU-D's meetings of Study Group 1 and Study Group 2, which will take place in September, Geneva, on September 6-9 and 12-15, 2005. See, notice in the Federal Register, July 8, 2005, Vol. 70, No. 130, at Pages 39544 - 39545. Location: Room 2533A, State Department.