72 Virgins

Oscar Nominations

The endurance trial that is the Oscar race started today with the announcement of the nominations. I haven't seen all the films, so it's unfair to make sweeping denunciations. However, there are more than a couple of blips.

First, standard disclaimer: The Oscars are about who you know. They are about celebrity status. They are about members of the Academy fawning over each other. They do not reflect audience preferences, they do not reflect the choices of critics. They started as an industry dinner party, an opportunity for people in the business to get together and cuddle. In many ways -- absent the dinner -- they remain so today.

I love Oscar critics who say that the Oscar's are "more and more irrelevant", as if they had ever been "relevant". Or those who remark that some past winner "hasn't stood the test of time", as if that mattered. In that year among that pool of contenders, those members of the Academy liked those winners more than anyone else. Period. Any greater analysis is what's irrelevant, not the winning films.

That said, every now and again there are nominations that are so patently absurd and insane that you have to scream. For example, when The Towering Inferno got a nomination for costume design. If you've seen the film, you know what I mean. If you haven't, accept the fact that the "costumes" were purchased off the discount rack at Sears. Ah, the joy of leisure suits. See Steve McQueen loosen his tie! See Paul Newman roll up his sleeves! See Susan Flannery prance about in Robert Wagner's dress shirt! Oh, the haute couture!

This year, the nomination that stands out for the What the Hell Award is Poseidon for best visual effects. Was the Academy desperate for three nominations? Didn't they notice that Children of Men has visuals all through it? Or, even more on point, how about Pan's Labyrinth? Questions of more worthy nominations aside, how did they miss that the little detail that the visual effects sucked? Even my non-movie geek friend remarked, "Holy [expletive deleted], how phony is that!" (He kept repeating himself until the tequila really kicked in and he passed out.)

So, easily, this is the worst nomination made this year.

As for the rest, I am reminded of what Andrew Sarris, the legendary film critic of the Village Voice, said when TV Guide asked him which film he thought should take home the Oscar for Best Picture. He responded that it didn't matter because the best film of the year hadn't been nominated. (He was, by the way, referring the Steven Spielberg's underappreciated masterpiece, Empire of the Sun.)

I have the same opinion here. I'm happy to see Paul Greengrass get a directorial nomination, but why isn't his film, United 93, up for best picture? From the moment I first saw it I didn't think anything would come along and beat it. Some came close, but nothing has changed my mind that United 93 was the best picture of 2006. (Must remind myself: It's not about what's good, it's about movieland politics. See, even I forget.)

I'm surprised at how few nominations Children of Men received, especially the lack of recognition of its subtle and effective visual effects work. Nonetheless, I'm laughing my left butt cheek off that it got a nomination for best screen adaptation. Obviously those making that nomination never read the book because if they did they might have noticed that the story in the film doesn't even approximate the story in the book; it might as well have been an original screenplay.

Speaking of insults to writers, some shutouts made me happy. I'm pleased as punch that the stench on ice that is V for Vendetta was completely ignored. I tortured myself with another viewing via DVD recently, only this time I added the horror of watching the included "making of..." documentary. What pretentious, clueless little people. The fictional characters working the fashion industry in The Devil Wears Prada come off as more believable and true than the "real" people who worked on V.

It would be fun to be Hollywood right now, because now all the politicking begins. All the phone calls, meetings, breakfasts, lunches, dinners, midnight snacks, alcohol, lattes, free DVD screeners, kissy faces, bribes, blackmailing, ass-kissing, posturing, blubbering, seduction, prostitution, soul searching, soul selling, soul stealing, vote stealing, hand waving, hand wringing, hand shaking, finger wagging, knuckle cracking, water-boarding, Chinese water torturing, hail pulling, nail biting, back-stabbing, et cetera, et cetera, et cetera, begin right now. All so a few can take home a statue that to 99.99999994% of the country means nothing, but to that remaining 0.00000006% means everything. Oh, to be a fly on the wall and watch it all transpire. That is the story that screams to be told on the big screen, this is a story no one dares to film.

Cowards.

Bob Lee "The Nailer" Swagger?

This makes me nervous.

I love the Swagger books by Stephen Hunter. Hell, I like all of his books that I've read. The man can right scenes of violence that make you gasp, yet they never feel gratuitous.

Shooter, the movie, is back on the book Point of Impact. As is endlessly discussed and explained, lots of things have to change during that transition of book-to-movie. So I know going in that I'm not going to see the Bob Lee on the screen the Bob Lee I read about. For one, in the book he's much older, a burnt out, semi-disabled Vietnam vet. In the movie he's played by Mark Wahlberg, and he's anything but old, burnt out, or disabled.

Does he have to be? Well, for the book he had to be, because that's why the bad guys recuited him. He's a master sniper, second to none. His war wound and the way he was treated by the government upon his return have made him fairly bitter. It, presumably, also makes him easier to manage. Naturally, in the book the bad guys get it all wrong, otherwise there wouldn't be sufficent plot; Swagger would just end up dead.

The film, according to its website, takes a different tack. He retired from the military after a botched mission, details not given. Otherwise, who knows why the bad guys want to recruit him for their double-cross. There's all sorts of idiot villain lines in the film's trailer, which are just too cliche for words.

On the plus side, though, is the director, Antoine Fuqua. I wasn't terribly impress with Training Day, his major claim to fame, but at least enjoyed King Authur, and really liked Tears of the Sun (in many ways a modern rendition of Dark of the Sun (aka The Mercenaries), which I'm dying to see on DVD). If nothing else, he's respectful of men in the military, so that gives me reason to hope he does Swagger and the Marines proud.

I'd feel better if Danny Glover wasn't in it, or if Ned Beatty didn't mutter that inane line in the trailer, but I guess I can't have eveyrthing.

Children of Men

I had high hopes for this film. Some of the early reviews were great. Later, there were some less than glowing comments. All that, combined with the delay in getting the film to my area, took the sheen off Children of Men. Until I saw it.

I'll cut to the chase and simply say it's my second favorite film of 2006 (#1 being United 93, no ifs, ands, or buts). It has problems, especially in terms of its politics, but it has a central story that just sucks me in.

Let me dispense with the bad right away:

Alfonso Cuarón throws images around in this film in such careless fashion that it becomes mindless and therefore meaningless. I didn't mind the posters slamming Bush and "Bliar", even though it seemed a strange thing to see in a film that ostensibly takes place 20 years in the future. As jabs at current administrations, they're weak. As elements of the film, they're stupid, and they'll seem even more so in the years to come.

There are images that are probably meant to remind us of other current events. Again, they are out of place here. Indeed, sometimes the result comes across as subversive in a pro-conservative way. They looked like visualizations of the arguments Mark Steyn has been making about Islamic immigration and population growth throughout Europe. Indeed, Britain "stands alone"; the uprisings throughout the world have destroyed the rest of the world. Now, the final bastion of civilization is under assault. Is that a liberal or a conservative nightmare?

It was frustrating to see yet another book adaptation that has nothing to do with the book. I recognize that the mediums (book and film) are completely different, have different requirements, can and must do different things. I get that. What I'll never understand is why you would purchase the film rights to a novel and then write a film that has nothing to do with the themes and ideas presented within the novel.

Here is the plot in a nutshell: In the near future, and for reasons unknown, the human race becomes infertile. Some 19 years into this disaster, as it becomes clear that humanity is only a few generations away from extinction, despair becomes the dominant mood. In the midst of this, and also for unknown reasons (aside from the obvious involvement of a man), a woman has become pregnant.

Both novel and movie share those elements. Aside from that and a few character names, they are utterly different stories. Cuaron could have easily done everything from scratch; he just needed another apocalyptic event. He probably could have used infertility. After all, the idea, in slightly different form, has been used before. For example, there's Frank Herbert's The White Plague, and while not infertility per se, humanity is about to become extinct because it can't breed.

Some things in the film are so obvious that they're clumsy. For instance, naming the pregnant girl Kee (Claire-Hope Ashitey). Get it? Get it? Nudge nudge. She's the key to everything. Nudge wink. So she's Kee! I almost groaned out loud.

But let's get to the good....

Children of Men is a film of remarkable imagery and power. I know that the bad stuff I've already mentioned gets in the way for some people, but the story -- for me -- boiled down to the simple tale of Theo (Clive Owen). Theo, you see, is a true hero, and there's not enough of those in films these days.

Despite allusions to an "activist" past, Theo doesn't care about the politics of the fascist government, or of the rebel gang, The Vicious. Both are portrayed as morally bankrupt, violent, and murderous. Between them, there are no good guys...except for Theo. And Theo is a reluctant hero with no personal stake in the outcome. He presses on anyway because that's what his very-ex-wife (20 years divorced) wanted and because he needs to rescue the girl and her baby. You could say that he's acting out of love, not of humanity but of the woman he was married to, but it is also clear he realizes what this birth means to the world.

I'm a hopeless romantic. I eat this stuff up.

I'm sure some want to hold Children of Men up as a pro-immigrant film. The Vicious are fighting for immigrant rights. If the film had stopped at that, I would think much worse of it. But the very fact that the immigration issue is not debated becomes interesting, because The Vicious are not good people. They are self-righteous ideologues who aren't above assassination to promote their ends.

One of them essentially declares a vendetta against Theo. Why? Because Theo survives an assassination attempt by fatally injuring the guy's young cousin. Theo was silly enough to protect his own life. The thug's response is precisely the sort you'd hear from a thug. It's tribal instinct and never mind all the fancy talk of "uprising" and their righteous cause. Theo becomes an obstacle to the cause and therefore must die, and even when he -- and others -- are no longer an obstacle, revenge -- and nothing fancier than that -- mandates his death.

Luke (Chiwetel Ejiofor, always good), the leader of The Vicious, wants Kee's baby as a symbol for The People to Rally Behind and Overthrow the Evil Government. (You can almost hear him talking in capital letters.) He couldn't give a rat's ass less about what she represents, that mankind may have found a reprieve from extinction. She's a means to a political end and nothing more. She's only that because she is an illegal immigrant. If a legal citizen had become pregnant, Luke couldn't have cared less. He doesn't see this as humanity's salvation. He only sees his narrow, irrelevant political struggle. He is, in other words, a moonbat and is insane.

When Theo suggests announcing to the world that Kee is pregnant, allowing some ray of hope into a hopeless, forlorn world, Luke and his henchmen recoil in horror. They mouth objections that sound like nothing so much as spoiled children who are utterly clueless. Cuarón, to his credit, never shows that their objections have the slightest basis in reality. Rather, their own actions show just how venal, narrow-minded, and out-of-touch-with-reality these self-righteous people are.

What reality are they out of touch with? The imminent extinction of the human race! How do immigration issues ("Equal rights for all immigrants!") stack up against that? To any rational, sane mind, they don't.

Luke's precious uprising ends up looking like Hamas protests in Gaza or the West Bank, or any other march by Islamist fanatics around the world, complete with masks, kaffiyehs, banners written in some Mid-East script, and shouts of, "Allah Akbar!" It would be easy to say that this illustrates what happens if we oppress Muslims, but in fact this is what happens when Muslim fanatics perceive that they're being oppressed (see cartoon riots and reactions to allegations of Koran flushing for examples). It is, as said, a conservative nightmare given form, and rather than resulting in a slap against Bush, Blair, et al, it ends up making one go, "Well, maybe we should nuke 'em."

(Quick aside: Reminds me of a liberal activist friend who, after seeing The Deer Hunter, recoiled in horror and called it the most pro-war film he'd ever seen. When I saw it I found I agreed with him completely.)

The cast is excellent, but even better is the casting. Cuarón has an eye for faces and bodies and isn't afraid of using folks who are utterly ordinary looking. Julianne Moore, as Theo's ex-wife, aside, there's not a beauty queen or cheesecake in the bunch.

Well, maybe Clive Owen, but then his acting here should at least get him an Oscar nomination, he's that good.

The film work, the craft demonstrated, is nothing short of amazing. Cuarón rules. There is one sequence where a group in a car are assaulted by a mob. I can glimpse the edges of how it had to be done, but it is so perfect that I'm left amazed. There is also a running firefight that sets the bar for such things so high that I wonder if it'll ever be matched, let alone exceeded. It shows the amazing power of extended takes as opposed to the current vogue of MTV rapid-fire cuts and edits. The film deserves Oscars for this if nothing else.

(Odds are, though, the film will be shunned, because the Hollywood crowd will notice that the film has that subtle air of being anti-liberal. There's a surface gloss that it hews to the anti-Bush line, but look a little closer and you see the little slams I've already described.)

At film's end, all the annoying bits faded away. I was left with that central story, Theo becoming obsessed with rescuing Kee and her child, regardless of the personal cost. As I said, he's a hero, a pure hero.

And for me, the strength of his journey overwhelms any of the film's faults.

Dearly Departed

I'm a Martin Scorsese fan. I haven't liked everything he's ever done, but even the ones I don't like are at least interesting. Most of his films are fantastic. So I was looking forward to seeing The Departed and now that I have, I'm surprised that I'm left with a supreme sense of, "Feh."

It begs for a comparison to its roots, the Chinese film Infernal Affairs. In some minor ways it improves on the original, but when all is said and done, Infernal Affairs wipes the floor with The Departed.

Why? First, I felt completely unstuck in time with The Departed. I think the film covers about a year's worth of time, but I'm not sure. Months seem to pass but no we're back in time no we're not we're a year down the road no we're only a day and look that conversation isn't over until next month the two are just stuck in that apartment chattering guns guns guns blood what month is it?

You get the idea? Some films do this with aplomb and a sense of discipline. Both were missing here. It felt clumsy, forced, erratic, and nonsensical. This is a shame, since Scorsese generally edits his films with the skill of a fine surgeon.

That's a mild complaint, though. Worst is the addition of Mark Wahlberg. I've nothing against Wahlberg per se, he's just given the thankless job of playing an annoying deus ex machina character.

The setup for both Infernal Affairs and The Departed is that an elite police unit has a mole within an organized crime gang. In turn, the gang has a mole within the elite police unit. The central plot of the film is that they are assigned to find each other; police mole must find gang mole and gang mole must find police mole. Within this framework is an exploration of personal identity and the loss of the same. Each is pretending to be something he's not. What impact does that begin to have on them? In Infernal Affairs, this covers some 10+ years. The stress of undercover work, taken to this extreme, is destroying the undercover cop. At the same time, the undercover gangster is finding he likes being a cop.

In Infernal Affairs, the true identity of the undercover cop is only known by one man. When that one man is killed, the cop's link to his real identity and life is gone. In The Departed, there are two officers who know his real identity, played by Martin Sheen and, tada, Mark Wahlberg. Wahlberg's only reason for being in the film is to be a profane screaming nutcase of a supervisor...and for the final scene of the film. Aside from that, his character is completely superfluous and redundant to Sheen's character. Why his character exists becomes nauseatingly obvious.

The internal conflicts from Infernal Affairs remain in The Departed, but the film only covers about a year in time. Development of the stresses the protagonists are going through suffers accordingly. With that diminished, virtually eliminated, we're not left with much of a story that hasn't been done, and overdone, before.

The casting for the rest of the film is very good, if not great. Jack Nicholson does all right as the over-the-top gang leader. Some have compared this performance to his rendition of The Joker in Batman, but I don't think so. Here he's just pure sociopath, and not an eloquent one at that.

Matt Damon plays the gangster who has infiltrated the cops, and he displays none of the self-confidence necessary to pull it off. Ditto Leonardo DiCaprio, who is given the ultimately thankless job of being the police undercover operative just trying to stay alive working for the insane Nicholson. Both come off as whiny little kids.

A fantastic performance is given by Ray Winstone as Mr. French, Nicholson's main muscle. His dead-pan performance is excellent. He does exudes threat in the same way most people exude breath, even as he never seems to ever raise his voice. The brief moment where he reflects that his wife "got reliable" gave me a chill.

Vera Farmiga plays Madolyn, the psychiatrist love interest of both Damon and diCaprio, and she also does a great job. Both she and Winstone completely upstage the "name" talent in the film. Watching questions roil over her face is a thing of wonder, even more so when she is driven to become an iceberg at the end. I also want to note that she's beautiful, not in typical starlet fashion, but in the way that real-life women are.

Scorsese's directing is remarkably restrained, especially when compared to his other gangland films. Like Michael Mann, though, he has cinematic violence down to a tee. It is sudden and horrifying without being dwelled on. This film, like many of his past films, oozes violence from its pores. Characters are violent, language is violent, scenes are violent, and even the act of using a cell phone is violent. Nicely done.

By film's end, I was disappointed, probably in large part because I really liked Infernal Affairs, which despite its flaws is perfection compared to The Departed. At the end of Infernal Affairs, I remembered the two protagonists, their plights and their fates. At the end of The Departed, though, I could have cared less about them, instead wondering what created someone like Mr. French. I also wondered just what would Madolyn do now?

Well, at least that was the question until Wahlberg showed up....

Analyzing Cisco v Apple

I think I'll start treating this like a law school exam question. FYI, a law school exam doesn't look for the right answer, they look at the strength and thoroughness of your arguments. If you want to see most of this is action in the real world, search for and read Quality Inns International v McDonald's Corp (a pdf can be found here). The process I'm going to go through is the same. If I were writing a brief on this case, this would be my outline. And hang on, this is a long post because there are a lot of questions in a trademark analysis.

All I have is the public record. Cisco, in the filing, makes allegations based on "belief and information", but they don't state the basis of either. In turn, Apple hasn't filed an answer at all, so all I have are their public statements. The rest is sheer speculation. With that said, let's run the drill....

Do we have a trademark?

Yes. The trademark in question is "iPhone". It is a nonsense word, invented for the purposes of its owner. It is meant to be distinctive and indicative of the goods and services it will be attached it. Here, Cisco is attaching it to their series of voice over Internet protocol (VOIP) products, so iPhone is probably meant to indicate "Internet Phone".

In turn, Apple would use the mark in conjunction with all their "i" products. Combining that lowercase letter with a word has become a style -- but not the exclusive style -- for Apple products. In the same fashion that everything from McDonald's is McSomething, most products that Apple is introducing are iSomething.

Is it worthy of protection? Where does it sit on the spectrum of distinctiveness?

The spectrum for trademarks is fanciful, arbitrary, suggestive, descriptive, and generic. A mark that is one of the first three is entitled to automatic protection. A descriptive mark will have to acquire secondary meaning to gain protection. A generic mark is not entitled to protection and can never be protected, even if it acquires secondary meaning.

For Cisco, iPhone is at least suggestive and might be considered arbitrary. The lowercase "i" suggests the Internet; it does not immediately describe the internet.

For Apple, iPhone is arbitrary in that it is meant to identify the good as an Apple product. Since the Apple product is a cell phone, the "I" has no meaning in terms of the devices form or function. For Apple, iPhone is just a part of their iLanguage.

Who owns the mark?

In US trademark law, the threshold question is who first used the mark in commerce? Cisco has established ownership in two ways.

First, registering a mark constitutes constructive use. Cisco, via its acquisition of the mark's original owner InfoGear, filed iPhone for trademark registration in 1996. InfoGear, now Cisco, first used the mark in commerce in 1997, selling products branded with the iPhone mark. The registration of the mark was granted in 1999. Cisco acquired InfoGear in 2000, gaining ownership of the iPhone mark. Thus, the mark has been used in commerce and has been constructively used via the registration process.

In late 2006, Cisco rebranded several of the products produced by its Linksys subsidiary with the iPhone mark. It's unclear if Cisco used the mark on any other product between 2000 and 2006. It is unclear if the InfoGear products that Cisco acquired in 2000 are still on the market, branded with the iPhone mark. While it was possible that Cisco let the mark lapse, they reacquired the mark in 2006 by the announcement and sales of the Linksys "iPhones".

In 2005 one company applied for trademark registration for the iPhone mark. In 2006, two additional companies applied for trademark registration for the iPhone mark. An application gives you nothing. Companies that may already hold the mark (i.e., Cisco) can file a protest against the application. The process takes years.

It is interesting to note that one of the companies that applied in 2006 is alleged by Cisco to be a front for Apple. It is also interesting to note that nothing in the record shows that Apple has applied for the iPhone mark in the United States.

By comparison, Apple's first use of the mark is -- at best -- in 2007. Even assuming that one of the 2006 applications is by an Apple front, the application does not constitute use, constructive or otherwise.

So, by actual use in 1997, constructive use in 1999, and actual use again in (at least) 2006, Cisco owns the mark.

What level of protection is the mark entitled to?

The threshold question: Likelihood of confusion. That is, how likely is confusion? Likelihood is more than a possibility but less than a probability. We look at...

Strength of mark. The stronger the plaintiff's mark, the most likely it is that consumers seeing defendant's allegedly similar mark will be confused about its source. Apple has a strong stance here. Because of Apple's work developing its iLanguage, someone is more likely to think "Apple" when they see "iPhone". If Apple owned the mark, this would clearly weigh in their favor.

However, strength of the mark isn't measured that way. Instead, you look at how the plaintiff (here, Cisco) has used the mark. How often, ad revenue expended, etc. Cisco has done more than Apple, to date, because until this month (January, 2007) Apple didn't have a product. Also, the analysis doesn't start and end with strength of the mark. You have to move on to...

Degree of similarity between the marks. They're identical, end of story. Maybe a different type face. Maybe. On to...

Proximity of goods or services. They will be sold in the area geographic areas (the United States and the world at large). It's doubtful that you'll see (for now) the Cisco iPhone in Cingular or Apple Store, but both Cingular and Apple sell in stores that also sell Cisco/Linksys products. So, a match. But there's...

Likelihood that plaintiff will bridge the gap. How likely Cisco is to begin selling the products or services which Apple is trying to sell with a similar mark? Doesn't matter whether Cisco has no immediate plans, because the court may consider Cisco's interest in reserving the option. Nonetheless, Apple may persuasively argue that the Cisco product is a VOIP device while the Apple product uses more typical cellular technology. Thus, different customer base, different target audience, no direct competition. We now step to...

Evidence of actual confusion. Since only the Cisco iPhone has been in the market, there's no way to compare actual instances of confusion. Both sides, however, can conduct customer surveys to see which way the confusion tumbles. This both helps and hurts Apple. As said, chances are that if someone see "iPhone" they think "Apple"; that's the strength of Apple's iLanguage at work. However, that very fact means that Apple's use will confuse people when they are looking for Cisco's product. And since more than likely a court would find that Cisco owns the mark, this level of confusion helps Cisco, not Apple. So what about...

Apple's good faith in adopting the mark. This is generally only reviewed where the goods don't directly compete. Here, they almost do; they're phones, albeit using different technology (VOIP vs. cellular). The question the court asks is whether or not Apple intentionally copied the mark, and how much money they've expended in promoting use of the mark.

Hello! Apple has already confessed to intentionally using a registered trademark. How do we know? Because it's alleged that they've been negotiating with Cisco since 2001 to either acquire or receive permission to use the mark.

And here's where Apple can run into real danger because Cisco can persuasively argue that Apple acted in bad faith. Apple knew the iPhone was Cisco's registered trademark. Apple may have attempted to acquire the mark from Cisco. Apple at least attempted to acquire permission to use the mark. Despite never coming to an agreement with Cisco, Apple went ahead and used the mark in commerce. Thus they deliberately used someone else's registered mark.

Understand that if Cisco argues bad faith and wins, then Apple is -- at this point -- utter toast. Bad faith (and I love this phrase) gives rise to a presumption of actual confusion. Our analysis of the likelihood of confusion is over, Apple loses. But just to be complete, there's...

The quality of Apples product or service. Not quality as in, "This is sooo well made", but quality as in type. Both products are phones; they are related services. This indicates that there is a greater likelihood of confusion. And last...

The sophistication of the buyers. Look at the relevant market, not the general public. Is someone looking for a VOIP device likely to be confused by seeing a VOIP product trademark on a cellular service product? Goes both ways, if you ask me. You could argue that someone looking for a VOIP phone is technologically sophisticated and not likely to be confused if you show them a regular cell phone. However, VOIP providers are trying to make this simpler and simpler, specifically to appeal to a less technologically sophisticated buyer. So I could easily see someone seeing the Apple iPhone and saying, "Hey, there's that new VOIP phone..."

There's also reverse confusion, which would be Apple flooding the market with the infringing mark. Not likely, though, given it won't even be available until June 2007. Also this measure assumes that Apple would be trading off of a Cisco user's good will.

There might be a case for contributory infringement. This isn't about the likelihood of confusion. It's about Apple "recruiting" Cingular into the infringement. Apple might even mount a defense here, saying that Cingular insisted that the device be called Apple, and thus induced Apple to infringe. That's sheer speculation on my part.

And we can just ignore vicarious liability. This isn't some Apple underling infringing, unless you want to call Steve Jobs and underling. I do, but then I don't like Steve Jobs, ever since what he did to the marvelous Apple //. There, I've confessed to my bias.

Nonetheless, what defenses are available for the Apple?

Near as I can tell, this is where all of Apple's public statements rest. It will be interesting to see what they file in their answer to Cisco. I think what you'll see, at least in part, is a countersuit wherein Apple claims that Cisco is attempting to take advantage of Apple's iLanguage. Apple has expended millions and millions in developing a line of products that all use the lowercase "i" in their name (e.g., iPod, iMac, iTunes, iEtc.). Cisco, in turn, has appropriate that style for a phone in anticipation of Apple entering that market. An Apple cell phone has been one of the hottest rumors in the tech industry for years. The market coined the name iPhone for that, until now, hypothetical market, and that's why Cisco leapt on the name.

But Cisco has a more than decent counter argument. The mark was registered before Apple began to full develop their iLanguage. Until this very moment there was no official indication from Apple that they were developing a phone. If Cisco is playing off Apple's iLanguage, so have other products. Consider the Cowon iAudio mp3 players. Not only do they use the iLanguage, they are direct competitors to one of Apple's iProducts, i.e., the iPod. Maybe Apple's ownership of iLanguage isn't as great as they'd like to believe.

And so we turn to the defenses that Apple has, so far, shouted, and others....

Fair use, Apple trying to say that they are using the mark in its descriptive sense, not attempting to identify a product. Oh, this won't work. What part of iPhone describes a cell phone, other than "phone"?

Estoppel. Here's one that some have been shouting, though they used different words. This is where most shout that it's unfair for Cisco to own the name. However, this defense assumes that Cisco first let Apple infringe, then later opted to file suit. In that instance, Apple would be acting in reasonable reliance on Cisco's good will. For reasons of equity, Cisco would be prevented from suing Apple for infringement. Didn't happen here.

Estoppel might come in, though, if Apple showed that it was Cisco who broke off negotiations re permission to use the mark. In that case, Apple might be able to show that Cisco acted in bad faith during those negotiations, that they gave Apple every indication that Apple would be granted a license to use the mark, and then yanked the rug out from under them after Apple actually used the mark. If that's the case, the court could prevent Cisco from seeking relief for Apple's "infringement".

Some have argued abandonment, but that requires two elements. The owner of the mark must stop using the mark, and the owner must have no intent to resume use in the foreseeable future. Abandonment might have occurred if Cisco first used the mark in 1997, then never again until 2006. However, the fact is that Cisco did use the mark again in 2006, and that argues against the second required element. Also, this would be stronger is Apple had began using the mark in the intervening time period, that is between when Cisco stopped, if they stopped at all, and when they resume.

Maybe Cisco has engaged in assignment in gross of the mark. Not applicable, I don't think, because as I understand it this would be a case where Cisco let someone else use the mark, that other person built up the good will for the mark, and now Cisco wants it back. Didn't happen here. So, how about...

Naked licensing. This, again, requires that Cisco licensed the mark to someone else, and then didn't supervisor that use. Didn't happen. Now we're to the biggie...

Failure to police. This is the defense Apple is publicly screaming and so are the Apple fanboys. This is the one where others are using the mark but Cisco isn't suing them for infringement. In order for this to work, however, you have to look at the entire analysis above on a case by case basis. For example, if one of the alleged infringers is using "iPhone" as a trademark on their dildo, there's probably not trademark infringement. On the other hand, if the other alleged infringers are branding phones with the iPhone trademark, Apple might have a good defense. This might push things toward...

Genericism, wherein the mark has become generic. Did you know that "aspirin" used to be a Bayer trademark? But they failed to police their mark and more and more, people just referred to pain relievers as aspirin. By the time Bayer got around to suing anyone for infringement, the term was ruled to be generic, and so it remains to this very day.

If Apple pushes things to this point, an interesting thing happens. iPhone ceases to become a word that may be trademarked. By anyone. Ever. This means that anyone can make a phone and call it the iPhone. The term loses all value for everyone.

The last defense is parody, but I don't think either Cisco or Apple means this as a joke, though I think the entire matter is hysterically funny.

I think Apple has a pair of good defenses with estoppel and failure to police. I think at any other step in the process, Cisco wins. iPhone is a valid trademark. It is at least suggestive and therefore deserving of protection. Cisco established ownership by both actual use and constructive use. There is a likelihood of confusion.

I said at the beginning that law school (and bar) exams aren't about the answer being right or wrong, but the strength of your arguments. Same applies in civil court, where this will be tried. The significance of Cisco's size speaks to the quality of their legal team and the legal resources they command. In turn, Apple has a crack intellectual property legal team. This will be one hell of a fight.

And I haven't even mentioned Apple's potential counterclaims....

Cisco Sues Apple!

Bwahaha:

Cisco Systems sued Apple Inc. in federal court Wednesday, saying the computer maker's new iPhone violates its trademark.

The lawsuit, filed in San Francisco federal court, came just a day after Apple Chief Executive Steve Jobs unveiled the Apple iPhone in dramatic fashion at a trade show in San Francisco.

But even while Jobs was trumpeting the product during his keynote address to Apple faithful, the matter of the product's naming had not been resolved behind the scenes between two of the biggest names in Silicon Valley.

I figured they'd play nice, I figured Apple, that is, Steve Jobs, wouldn't be so stupid. Sure, he got away with this crap when Apple (Computers) fought Apple (Records), but Cisco is worth (let's check the article) something like $174 billion, "the most richly valued company in Silicon Valley[.]"

It is also worth noting that they are suing for injunctive relief, a court order commanding Apple to top using the name "iPhone". They can easily ask for that because they have a product on the market, using their registered mark. Apple is 5+ months away from delivering product. Cisco's lawyers can easily argue that Apple can, at this point, easily change the product name. Order granted!

One analyst thinks that Cisco has better things to do with their time and money then sue over a product name. Personally I think Apple has better things to do with their time and money then to deliberately try and still someone else's registered, used trademark.

James Cameron Is Back?

I want to get this excited, I really do:

I don’t care how he votes. I don’t care if he’s frenched Hugo Chavez in the warm glow of a burning American flag. Cameron is the most innovative exciting and original filmmaker we have now and his return to the business of making films is wonderful news. If some other hacks had half Cameron’s talent I’d give them a wider berth. See, it’s just a bad mix to be a hack and hate America. One or the other I can maybe live with. But both? No.

...but James Cameron is so uneven for me. Maybe it's the way he let his ego take over after Titanic's Oscar sweep. Or maybe because where lots of people condemn Steven Spielberg for creating the "curse" of the summer blockbuster (think Jaws, 1975), I blame Cameron for creating the true curse of the horrifically out of control Hollywood film budget.

Titanic was and probably remains the most expensive film ever made. (Yes, yes, I know that Cleopatra ranks right up there, but I don't have my inflation adjustment calculator with me at the moment.) What happned in the case of Titanic, though, was that by some miracle it achieved a profit. By common formula it had to gross something like $750 million at the box office just to break even, and its box office gross went into the billions. Thus all those studios began greenlighting films with budgets in the hundreds of millions of dollars. And not too many of those get to be made, even as they absorb all of the money available for film projects.

It's wrong to blame Cameron, I know, but it still irks me. He got the bad guys right in True Lies, and wasn't ashamed of it. Even though I think it's a flop, The Abyss is a glorious failure. And I was happy he wanted nothing to do with Terminator 3: Rise of the Machines because he shouldn't have made Terminator 2: Judgment Day. The Terminator is simply one of my all-time favorites and he should have left well enough alone. And even though he completely fouls up the alien biology, and even though he makes Marines look stupid, once they're dead, Aliens turns into a great film.

So, yeah, I suppose I have high hopes for what he'll do with The Avatar. I love his commitment to the craft of filmmaking, so much so that I'll probably be in line opening night, 2009.

Apple Unveils a Lawsuit!

Well, maybe not yet, but Cisco already owns the name "iPhone", so either Apple has purchased permission to use the name or their lawyers are already drawing up their response to the filing Cisco will be making.

In any event, at MacWorld today, Jobs unveiled the long-rumored, much discussed, always drooled over (by Macboi's) Apple iPhone.

Am I the only one not terribly impressed?

The technology looks stunning. It also looks like overkill. Massive overkill for a phone. As a precursor for future uses, this is terrific. Jobs compared this to the unveiling of the original Macintosh computer. To me, it looks more like the unveiling of the Lisa, which was overpriced and underwhelming in actual use. To be sure, the Lisa made way for the Mac. In the same way, it looks to me that this generation iPhone will give way to a genuine killer product.

Why? The price. For $500 I can get a kick-ass digital camera, a kick-ass mp3 player, and be more than satisfied with a regular, free cell phone. Aside from meaning I only carry one thing, what does the iPhone offer over that setup? Er...? And my 3-part setup means I've got a superior camera (far better than a 2-megapixel thing, not to mention the lens) and a superior mp3 player (anything from a 4GB Nano to a 30GB iPod to a 30+GB alternative). And that's in comparison to the 4GB iPhone; add $100 for an 8GB model, which improves my options.

So what does the iPhone offer? Technology for the sake of technology. It is glitz, bells, and whistles. It is this year's Razr. Paris Hilton will buy lots so she can give them out as party favors. Apple will probably sell all they make. But the price of the Razr dropped like a rock in the first year, from $500 to $100, and today it's even cheaper (that is, free). I doubt this iPhone will follow suit.

Please understand that I want one. It's gorgeous. It's amazing to look at. I could spend lots of time just playing with the new interface. But at the end of the day I'd look at the thing and go, "Whoop." Will it sync with my Outlook contact list? Will it have any way to at least import my Outlook contact list? How about my calendar? Task list?

For $600, I expect a smartphone. But wait, this isn't a smartphone. I can't work with documents (Word or otherwise) or spreadsheets (Excel or otherwise). As 3G phones become more and more prevalent, especially for using that Internet access Jobs touts, here is a phone that doesn't use any of the available 3G technologies. Instead, it's limited to near-dial-up speeds provided by Cingular's Edge network, and that is soooo a few years ago.

(And speaking of Jobs touting Internet access, he bloviated as usual, acting as though the iPhone was the first ever phone to allow you to surf the 'Net. I guess I was fantasizing doing so with my Treo 650; ditto my friend with his Treo 700W, let alone all those people using the Cingular 8125/8525. No wonder Jobs sucks almost as bad as Bill Gates.)

For $400 (and a 2-year contact) I can have a brilliant Cingular 8525 that can do all that and most everything the iPhone does. It'll even play mp3's with storage via mini-SD cards. And though that might not equal 8GB of storage, I can carry a butt-load of 2+GB cards to make up the difference. Or I can add a decent mp3 player and voila, I've kicked the iPhone's ass all around the block. Won't look as pretty, won't be some sparkling trendsetter, but I'll be doing the same and much, much more.

You can tell me about the superb software (mini OS X?) and the advanced "intuitive" interface all you want, and I'll agree. I'll also I tell you that when using a phone, it's harder to get more intuitive than just starting to type someone's name or phone number, and have the phone present a list of choices until you've either typed enough to narrow it to the correct choice or picked it off the presented list. That is instinctive, because all a user need do is start typing a name or a phone number, something people do when using a phone. That is intuitive.

Let me repeat and make myself clear. The Apple iPhone looks brilliant. I love the full-scale mockup using a similar interface for photo viewing (video of a guy using a big display and his hands). It looks like something straight out of Minority Report, i.e., science fiction. Neat! And I love all the little changes it makes to how you use a phone, like picking the voice mail you want to listen to rather than being stuck listening to the list. It really is a brilliant fusion of some brilliant technology.

But at that price point it's technology for technology's sake. Only the most vapid and elite (i.e., Paris Hilton) or the geekyist (like me, if I were rich) will buy it

This is a phone aimed at the consumer market while being priced for the business market. It may create a new demand. As such, like the Lisa it will generate the buzz and demand for similar devices. But also like the Lisa it will become a footnote to the amazing success of some future product, something else from Apple or even (you may shudder) Microsoft.

OS Wars, Flame!

Will the prattle over whose operating system is superior ever cease? Well, no, of course not. I, of course, opt to sit above the fray and will pompously claim to speak for the common man. What do I mean by that? I mean that insane and inane debates over which operating system is "best" completely miss the point. The point? That most people don't care about the operating system, they care whether or not their computer does what they want it to do.

I bow before the inherent superiority of Linux and its Unix origins. I acknowledge that a core of Unix invests Mac OS X with a certain sophistication and advantage that Windows XP -- and probably the forthcoming Windows Vista -- can't, and won't, match. Fine. Mac fanbois, are you happy?

Good. Excuse me, though, I'm sticking with my XP boxes, thankyouverymuch.

Why? Because XP works. I know someone can crank up some stats that show that once an XP box touches the Internet it takes approximately three shakes for an XP box to be overrun with spyware and virii. I've had one virus in the last three years, and while Norton rolled on its back and said, "Alas, I am defeated," AVG racked a round into its virtual AK-47 and blasted the intruder straight to Mars. I do not practice safe computing; I surf wherever the hell I want and boldly stare at...well, all sorts of stuff. But a simple combination of an effective router (came with my DSL setup), an upgraded firewall (Grisoft again), and use of Firefox (though IE 7 is just fine) appears to mean I'm immune.

And I dare, dare I say, to use Outlook (v2003)!

Macs are very pretty to look at, but they are the most autocratic computers on the planet. In return for allegiance to their insular rule, they are relatively seamless in operation; the trains run on time, and everyone has a modicum of health care.

XP boxes are, to continue the analogy, pure democracy, which means mob rule. Microsoft attempts to impose a republic on this democracy, a moderator between mob demands and what the system can actually do. For those efforts they are cursed as demons straight from the lower Circles of Hell. Because of mob rule, and an imperfect republic, XP boxes are slightly less stable but vastly more versatile.

Oh, and just for the sake of completeness, Linux represents an oligarchy. There are an elite few who know all the inner workings; everyone else just does as they're told. It's an open oligarchy, though, because anyone willing to devote the time and energy can rise to become a member of the elite.

Again, though, most people don't give three figs what operating system their computer foists upon them. They look at the tools provided and see if they fit their individual needs.

Right now, XP has -- for me -- the killer app. I was shocked to discover that it's Microsoft Word 2007. I've despised Word for -- in computer years -- ever. Now it rules. What changed? The document map feature suddenly just works. I quickly and easily built a project outline and the assorted levels appeared in the document map, all neatly organized. Now I write, within the outline itself, and those words are invisible in the map, but a click at where they belong in my outline takes me there. For project development, as well as somewhere to keep track of plot points, characters, locales, etc., I use MS OneNote, which cooperates with Word.

I love it.

I have abandoned WordPerfect, for over 15 years my preferred writing tool. I've tried OpenOffice Writer and found it has all the flaws and things I hated in Word, with none of the things I liked about Word. It has nothing like the improved implementation of the document map.

I'm addicted.

I had briefly toyed with the idea of getting a Mac Mini and a copy of CopyWrite, but I've tossed that idea away. Word 2007, backed by OneNote, has given me a way to organize my writing and keep me working on books and the like. Now I don't have to worry about converting my software library, and I can still play Day of Defeat.

So feh to OS X, Linux, and even Vista. XP and Word 2007 have become the toolkit I've been seeking for almost 30 years with personal computers. About time!

Uncle Orson's All-time Film List

My son loves to read Orson Scott Card. I'm a fan, but not in the same league as my son. He also likes to peruse Card's website, and I thought I'd trot over there and look, what I found, Uncle Orson's All-time Film List:

To make this list, a film had to move me deeply or entertain me greatly on first viewing, and continue to move me and entertain me upon repeat viewings in later years. The first twenty or so are roughly in order of importance to me; after that, the order of the rest could be shuffled a bit without harm. I mean, can I really say that Hudsucker Proxy is "better" than The Man Who Would Be King? Of course not. But I can say that Man for All Seasons is more important to me than any other movie in my life, though the next few aren't far behind.

Regretfully, I confess that I haven't seen all of the films on his list, just most (90+%). What I find amazing is how much I agree with his assessments of the films, and what made them simply Great. For instance, he lists The Man Who Would Be King and says, :This film is so sad that I can't bear to watch the end." And that's so true. I saw it on cable TV years and years ago and was left speechless at the end. When it came out on DVD I had to buy it. I've watched it once. I love the film and can't bear to watch it all the way through.

The film at the top of Card's list is A Man For All Seasons, and while it wouldn't be #1 on my list, it would be near the top. The film should be mandatory viewing for law students, to understand that distinction between being righteous and being self-righteous, so they would hear Paul Scofield deliver that marvelous retort to Corin Redgrave, about how the law must apply to all, even the Devil himself. (Modern film would add, "Especially to the Devil!" but that's just politically correct crap.)

It's a marvelous list with marvelous reasons for why each film is there. And halleluiah, he likes Silverado!