Junk Law


August 15, 2005


Browse in Intellectual Property

The President has declared war on what he calls “junk lawsuits,” but the only kind of legal action that seems to bother him is when ordinary people seek justice from large corporations. When the shoe is on the other foot — when the corporations are siccing their lawyers on you and me — there seems to be no problem.

Take Ma Bell. Not the telephone company; it doesn’t exist any more. I mean Michele Yontef, a private investigator in Tucson, Arizona, who searches for missing children and the like. Ms. Yontef goes by the name “Ma Bell,” in part because her father used to sing to her the Beatles’ song “Michelle,” which includes the line “Michelle, ma belle.”

With the feminine suffix or without, someone in corporate America was not charmed. According to a recent front page story in the Wall Street Journal, Yontef has been sued in federal court for infringing on a trademark of AT&T, which years ago was ingested into the regional companies into which it was broken. The plaintiff is Qwest Communications International, which has dropped the word “Bell” from its name and makes only brief mention of its corporate lineage on its web site.

Qwest may not go by the name “Bell” any more, but it doesn’t want anyone else to either, especially if they do anything related to the telephone. (Yontef does much of her investigative work on-line, and sometimes tracks cell phone calls.) It and the three other Bell spin-off companies run a web site that boasts that they have beaten “literally thousands of infringers.” Lest anyone question the justice of claiming monopoly rights to a name the corporations no longer use, the site warns that the median cost of a trademark case that goes to trial is $128,000, “which means half the cases cost more.”

President Bush notwithstanding, Michele Yontef thinks that’s junk law. She is going to stand up to Qwest in court, and she’s studying law on the internet so that she can represent herself. “There is a principle at play here,” she told the Journal. “I want my kids to understand, if a bully wants your lunch money you don’t hand it over — you fight.”

Actually there are a couple of principles at play. One concerns trademarks. These originally attested to the authenticity of a specific item, such as Craftsman tools or Levis jeans. They were not supposed to be free-floating corporate logos such as Qwest et al have made of Ma Bell. We Americans start from a premise of freedom rather than monopoly, so shouldn’t trademarks be construed strictly, and apply only to the particular products to which they were originally attached? Ma Bell was a long distance service, not a sprawling telecom operation.

The other principle is the legal bullying that Yontef has become the target of. It happens all the time, and probably far more often than the excessive jury awards against corporations that have the President in such a dither. In the late 1990s I was working for Senator Byron Dorgan of North Dakota, and we got a letter from a lady who had become a target too.

Her name was Debbie Kruger; and with her husband, she owned a drugstore and soda fountain in Mandan, North Dakota, which is across the Missouri River from the state capitol in Bismarck. In the best tradition of American enterprise, Kruger had developed a small line of candy bars to sell in her store. When the state began planning a celebration of the two-hundredth anniversary of the Lewis and Clark expedition (the explorers spent the winter of 1804 at Fort Mandan) Debbie came up with a candy bar she called the Lewis and Clark Bar.

Kruger manufactured about 30,000 of the bars and sold about 20,000 of them. It was barely a blip in what is called the “candy and snack” market, which then totaled about $24 billion a year. But no blip is too small when a billable hour is in the offing. Kruger received a letter from a lawyer in Boston who was representing the New England Confectionary Company, which makes Necco Wafers, and the little heart candies with such sayings as “Marry Me” and “Be Mine.” Necco recently had bought the company that made the Clark bar, and the Boston lawyer claimed that Debbie Kruger’s Lewis and Clark bar had infringed upon it.

The lawyer did not cite a single person who had confused the two confections, and it is doubtful he could have. The bars were different in every respect, from wrapper to filling. Lewis and Clark the explorers have about as much to do with the old Clark bar in its orange wrapper, as Robin Williams, the comedian, has to do with Ted Williams, the baseball great, or with Sherwin-Williams paint. The confusion factor is about equal too.

But common sense doesn’t matter much when a corporate lawyer is banging at the door. Necco in effect was claiming that it owned the name of one of this country’s great explorers, and the Krugers didn’t have $128,000 to argue otherwise. But they did have a Senator who still believes in sticking up for the little guy. Dorgan took to the floor of the Senate, ripped Necco and its lawyer, and told them to “lay of small businesses.”

Necco backed down. But not every citizen can enlist a U.S. Senator in their defense. Nor should they have too. If we could ask Thomas Jefferson and James Madison whether they intended the Copyright and Patent Clause of the Constitution to become a cudgel for corporate bullies such as these is there any question what their answer would be?

“How often do you hear members come to the floor of the Senate and worry about the number of lawsuits in this country?” Dorgan said. “they worry about the lawsuits filed by customers against big corporations. What about this use of lawyers by a big company trying to put a small company out of business? What about that kind of corporate bullying?’

Well, Mr. President. What about it?

(For more on this topic, see my colleague David Bollier’s book, Brand Name Bullies, which is noted in the column to the right.)