Nasir and Matt discuss how the Supreme Court will address the upcoming technology based cases on the docket.
They also answer, "What is the difference between a Trademark and Service Mark? Which do I need for my advertising golf cart business?"
NASIR: Welcome to Legally Sound Smart Business.
This is Nasir Pasha.
MATT: And this is Matt Staub.
NASIR: And welcome to our business legal podcast where we cover business in the news and add our legal twist and also answer some of your business legal questions that you, the listener, can send in to our email address.
MATT: Which is…?
NASIR: Oh, email@example.com.
MATT: I’m glad I’m not a guest anymore, or else I would have not known that.
NASIR: Yes, you’ve been upgraded once again to co-host but, at any time, that is subject to change.
MATT: Great. We’ll see what happens. I think, last week, I was fine on Monday. And then, for some reason, I got downgraded Wednesday and Friday. I don’t know what happened.
NASIR: Well, you listened to Monday’s episode, right? Obviously, you should do some self-reflection there.
MATT: That’s true, yeah. I have to go back. I didn’t hear anything but I’ll go back and listen a second time.
All right, well, I think this is going to gain a lot of publicity here as we get closer to it. We usually don’t talk about specific stories so much but I kind of need to talk about this story because it paints the picture as a whole. There’s all these big cases that are going to hit the Supreme Court here pretty soon – these big cases that deal with tech. What this article is basically saying is these nine people aren’t the best people to be making huge tech decisions and, like I said, it’s the Supreme Court. This is going to be the final word here and this is basically saying these aren’t the best nine people for making decisions on tech, on what the law is supposed to be. You know, he kind of details some of the justices. Some of this might be overblown. It talks about a couple of them really aren’t sure, haven’t really gotten to email, find Facebook and Twitter a challenge. I don’t know how true any of this is. I mean, I find it hard to believe that they don’t know how to use email. I don’t care how old you are. They’re obviously all pretty bright so I think they can figure it out and stuff like that. But, I mean, this is an interesting topic. Have you thought about this at all? Because I think it is going to be interesting if they get into some really complex issues, but this isn’t the first time, I’m sure, they’ve encountered issues they weren’t familiar with.
NASIR: Yeah, you’re right. It’s not the first time but, I think, in general, the Supreme Court is generally going to be older and they’re going to be of some – I think, in my personal opinion – kind of a status of which they’re not as in touch with most of the US population and I think, in general, whether it’s technology or not, a lot of people feel that way that a lot of the decisions that come out of the Supreme Court are sometimes a little bit distant from what’s actually going on in the ground. Eventually, that usually catches up. It just takes a little bit of time. But the system design to the law has not changed too quickly. But, from my perspective, one thing I think about technology is, when it comes to defamation. For example, the statute of limitations – and I’m not even talking about the Supreme Court but in most appellate jurisdictions in the state – for the statute of limitations for defamation is one year in most states, okay? That means that you have one year from the date of publication to bring your claim. Most states follow a single publication meaning it doesn’t matter if it’s republished over and over again. They look at the first publication. But where this comes into play that I think the law has not caught up with technology is that, when someone posts a defamatory comment online as opposed to a newspaper or a story, when it’s published online, it kind of goes off on its own and it’s continuously republished, shared in different places, it’s going to be on Google Search, it’s going to be here and there, and it’s not going to go away, yet courts have interpreted that it’s still one year statute limitation. Second, you may not even find out until years later about some of these comments that come up and I think, in that particular case, it’s a poor interpretation, but I think you can find many cases where the technology is just too advanced for the law to keep up.
MATT: I don’t think that’s the Supreme Court. It’s obviously not just the Supreme Court. I think there’s a lot of laws, a lot of statutes that aren’t up-to-date with modern times that don’t even address things like email or the internet or anything really online. So, I guess it would require a complete overhaul and this is all just speculation. We have no idea how they’re actually going to decide on things and maybe they’ll be fine. There’s a big case about, you know, is it lawful for the police if they arrest you to search your cell phone? Actually, that might have already been decided.
MATT: Was that already decided?
NASIR: I don’t think the US Supreme Court decided that, from what I recall, but a good example that they did recently was the GPS tracker case.
MATT: That’s what it was, yeah.
NASIR: And that was a 9-0 decision where they said that it’s unreasonable search and seizure to basically put a GPS on someone’s car without a warrant. What’s interesting about that – and this is the argument that jurists are going to say – that you can always take old law and apply it to new situations and get a just result. In this case, that’s what some of the judges did, specifically Scalia. He based his decision on 18th Century court law which he was ridiculed by Justice Alito about. But, basically, in that case, they said, “Okay, you can follow a person possibly without a warrant but, by putting a GPS tracker, that is just too much.” Somehow, they were able to create a legal discussion, a legal argument based upon a technology that never existed because, before then, you couldn’t follow somebody without being seen, so to speak.
MATT: Yeah. So, I imagine they can do similar things if they want. I’m not as concerned as other people might be on whether they’ll get to these conclusions because they’re all smart people. The substance of cases they’ve been through has to be all over the board so they’re smart enough to read a brief and figure out what’s going on so I’m not too concerned about it but it will be interesting if some of these things are true about they haven’t really gone into email and they were talking about Netflix. They said NetFlick, eye-drop – I don’t know why. It’s a combination of Dropbox and some Mac thing. I don’t know what that’s even supposed to be.
MATT: Something to keep an eye on, I guess, when we get into the Supreme Court season here.
NASIR: I think everyone’s looking forward to this year’s Supreme Court season. Who do you think is going to win this year? Who’s your favorite?
MATT: Oh, no, it’s a pretty wide-open race. I wonder if there’s a way to bet on Supreme Court decisions?
NASIR: Oh, yeah.
MATT: There has to be some website that does it.
NASIR: I don’t remember the site but there’s a site that you can bet pretty much on everything, especially in Vegas – you can bet on everything – but there’s a site, I’m trying to remember. You can bet on politics. You can bet on whether a hurricane is going to hit this city or not. In fact, there was even some guy that I think won a bet in that World Cup. He bet that one football that bit that guy’s shoulder – I can’t remember his name.
NASIR: But he bet that he would bite somebody in that particular game which ended up being not too crazy of a bet because, apparently, he’s done it before. But, still, he won quite a bit of money.
MATT: Yeah, I do remember that. There’s also a couple of people, a more conventional bet that won, the Brazil-Germany match where Germany just destroyed them.
NASIR: Oh, really?
MATT: It was like, what? 7-1. I think there were three people who bet the exact score and it was pretty crazy odds.
MATT: Yeah. All right, enough gambling talk.
NASIR: No, one more thing, there’s this Twitter account that was basically saying there’s a FIFA conspiracy so that, one Twitter, what they did is they basically predicted the entire match of the World Cup and people were trying to figure out what they did but what they did is they created hundreds of different FIFA accounts with varying different names with all the different possibilities and then posted everything before the game and then, after the game was done, deleted the old accounts and then pointed to it so that it looked like they predicted the game and it was a FIFA conspiracy. It was a rigged game and so forth.
MATT: That seems like a lot of work.
NASIR: Yeah, I know, for what purpose? I don’t know what they got out of it besides publicity.
NASIR: All right. Now, we can get to the question of the day.
MATT: This one I think will be a pretty short answer.
“What is the difference between a trademark and a service mark? Which do I need for my advertising golf cart business?”
NASIR: That is specific.
MATT: So, I’m guessing this comes from an advertising golf cart business owner.
NASIR: Yeah, I would think that’s right.
So, trademark is kind of used in a way that both applies to both service marks and trademarks. Even though a trademark is referring to a tradename whereas service mark is more of… maybe you can give an example between the two?
MATT: Well, we’re going to stick with pizza because that’s always a theme of the podcast.
NASIR: Very predictable.
MATT: Let’s say you have a pizza place. They have all these specialty pies and one of them is the Legally Sound Smart Business pizza.
NASIR: Known for its sauce.
MATT: Of course. That would be a trademark because you’re talking about an actual product that is being sold. But, if you’re talking about the service in which the pizzas were made or delivered to the customers, then we’re talking about a service mark because we’re dealing with the actual service and not the pizza itself.
NASIR: Yeah. At the end of the day, the actual distinction between a service mark and a trademark is pretty negligible. I think only attorneys really care the difference and, even then, the legal consequences, I can’t really think of anything – you know, unless it really gets into deep trademark law when it comes to infringement and so forth. You have to file a trademark in certain classes of goods and services and that’s really the question this person’s asking, right? “Should I file it in a good or a service?” and that’s kind of a hard question to answer because you have a lot of options when it comes to classes of goods and that’s something that you kind of have to do your research when the attorney does it. But I think we can establish though that an advertising golf cart business is a service of some sort, right?
MATT: Yeah, that’s their business – driving golf carts around and having advertising on them. That’s going to be a service. There’s no good or product – unless they’re selling the carts on some other spot. That’d get into a different story but what they’re actually providing is a service so that’s going to be a service mark.
NASIR: Yeah, and the reality is most businesses, even when they sell goods, they sell a service and vice versa to the biggest company of Amazon to even a law firm. You know, they can provide certain services but then they could also sell certain products. Maybe they sell pizzas, for example, like we do.
MATT: You don’t know about this. That’s my wife’s dream. She always tells me, “Just open up a pizza law office.”
NASIR: Oh, we should!
MATT: It doesn’t make any sense.
NASIR: It doesn’t make sense at all but we should definitely do that, though. I do want to start a pizza place. That’d be good.
MATT: People are just waiting – you know, when you walk into an office and they say if you want coffee or tea or water, “If you want a pizza…” We have one of those 900-degree ovens and they make a pizza in like a minute and a half.
NASIR: I like it. Sounds good.
MATT: That is a good idea. Yeah, let’s do that.
NASIR: Let’s do that tomorrow.
NASIR: All right. Well, that’s our episode. Thank you for joining us everyone.
MATT: Keep it sound and keep it smart!