e dot dot dot
a mostly about the Internet blog by

March 2019
Sun Mon Tue Wed Thu Fri Sat
         
           


Fifth Circuit Affirms Springboards To Education's Loss Against Houston School In Trademark Case Appeal

Furnished content.


Way back in 2016, we discussed one company's quest to sue a bunch of librararies and schools for infringing on its program to promote reading to young schoolchildren. If that seems positively evil, then, yes, you indeed have a soul, so congratulations. If you're wondering how such a thing could have legal standing, it all centers around Springboards to Education having created the reading program with rewards that included children entering the "Millionaire Reading Club" for getting through a certain amount of books, the handing out of fake reward money, and other prizes. A bunch of libraries and schools independently setup their own reading clubs with similarly named rewards, thus leading to Springboards filing suit.One of those school districts in Houston defended itself by pointing out that it was not engaged in commerce, meaning that its use was plainly Fair Use. The school won its case.

Springboards sued HISD for trademark infringement, counterfeiting, false designation of origin and dilution. After HISD and Springboards filed cross-motions for summary judgment, the district court granted HISD’s motion on the ground that Springboards could not show that HISD had used the mark in commerce. Springboards appealed.
Amazingly, Springboards appealed that decision, sending the case to the Fifth Circuit. Not surprisingly, the Fifth Circuit affirmed the ruling, pointing out that not only did it not have any opinion that would overrule the lower court's contention that the school district was not engaged in commerce, but also adding that there was no likelihood of confusion in the use, thus rendering this not trademark infringement.
Springboards to Education, Inc., sued Houston Independent School District under the Lanham Act for using its marks in the course of operating a summer-reading program. The district court disposed of Springboards’ claims on summary judgment because it concluded that a reasonable jury could not find that the allegedly infringing use of Springboards’ marks was commercial in nature. We AFFIRM, albeit on alternative grounds: as explained herein, a reasonable jury could not find that the allegedly infringing use of the marks created a likelihood of confusion.
The court goes on through a long, detailed explanation to Springboards as to what confusion actually is and who's confusion is actually relevant to a discussion over trademark infringement. Springboards had attempted, for instance, to suggest that parents and children themselves might be confused, thinking they were part of a Springboards program rather than one created by the school. The court points out that, even if that weren't the case, the children and their parents aren't a purchaser in any of this.
Springboards suggests HISD’s students and their parents might have been confused into thinking that HISD was using Springboards’ program instead of its own. Regardless of whether that might have been the case, HISD’s students and their parents are not the appropriate focus of the likelihood-of-confusion analysis. Although the ultimate recipients of HISD’s services and products, the students and their parents were not purchasers in any ordinary sense.3 They are better characterized as the “users” of the allegedly infringing products and services.
And, since HISD wasn't attempting to compete with Springboards' program elsewhere, no relevant confusion could be found.One would hope this would be the end of this stupid saga and everyone could just get back to encouraging children to read books in their own specific ways. Whether Springboards will finally take the hint is the worst kind of cliffhanger.

Permalink | Comments | Email This Story


Read more here

posted at: 12:00am on 22-Mar-2019
path: /Policy | permalink | edit (requires password)

0 comments, click here to add the first



Appeals Court Overturns 47-Year-Old Murder Conviction Predicated On Faulty FBI Hair Analysis Evidence

Furnished content.


For years, FBI forensic experts have been overstating their certainty about… well, everything. Every piece of forensic evidence -- the stuff eventually proven to be junk science bolstered by junk stats -- was given the official "Thumbs Up of Absolute Certainty" during testimony.Eventually (very eventually), it was exposed for the courtroom snake oil it actually was. The FBI, duly chastened, promised to keep doing the same damn thing in perpetuity no matter what actual scientists using actual scientific methods had to say.For decades, this was standard operating procedure. A study by The Innocence Project found FBI forensic experts had been overstating their findings in court, resulting in a large number of potentially bogus convictions. The DOJ also admitted this error, but chose only to inform prosecutors of its findings, leaving it up to them to erase their own wins from the board.One of these dubious "hair match" cases has finally made its way to the appellate level. John Ausby, convicted of rape and murder in 1972, is challenging his conviction based on the prosecution's reliance on FBI experts' overstatements. Thanks to the DOJ's admission this expert testimony was likely flawed, Ausby can actually pursue this so long after the fact.Unfortunately, the lower court claimed the hair match testimony wasn't instrumental to the guilty verdict. It maintained the verdict would have been reached without the FBI forensic expert's assertions of certainty and the prosecution's reliance on this key -- but ultimately bogus -- piece of evidence.The DC Circuit Appeals Court disagrees [PDF]. As it points out, the situation isn't as simple as the lower court makes it appear. There was additional evidence used to convict Ausby, but the record shows the prosecution relied on the expert's statement that the hairs from the murder scene were an "exact match" -- something it reiterated during closing arguments.Given the combination of evidence used to convict Ausby, the court finds this overstatement of certainty was instrumental in his conviction.

Agent Neill’s testimony was neither the sole piece of evidence on which the prosecution hung its case nor redundant or irrelevant. We ultimately conclude, however, that Agent Neill’s testimony falls on the material side of the spectrum. Agent Neill’s testimony was the primary evidence that directly contradicted Ausby’s defense theory—that Ausby had been in Noel’s apartment during her two-week absence but not on the day of her rape and murder.
As the court notes, other evidence somewhat supported Ausby's alibi, but it was seemingly shut down by the prosecution's insistence that the hair recovered from the scene could only have come from Ausby.
That Agent Neill’s testimony played a key role in debunking Ausby’s defense is borne out by the prosecution’s emphasis in its closing rebuttal that Agent Neill’s microscopic hair-comparison analysis “is not a positive means of identification but it amounts to a positive means here.” Thus, without Agent Neill’s hair-comparison testimony, there is a reasonable likelihood that the jury could have accepted Ausby’s defense theory.
Forty-seven years later, Ausby's conviction is being vacated. If it hadn't take the DOJ forty years to realize it had a forensic evidence problem, this injustice could have been undone decades sooner.

Permalink | Comments | Email This Story


Read more here

posted at: 12:00am on 22-Mar-2019
path: /Policy | permalink | edit (requires password)

0 comments, click here to add the first



March 2019
Sun Mon Tue Wed Thu Fri Sat
         
           







RSS (site)  RSS (path)

ATOM (site)  ATOM (path)

Categories
 - blog home

 - Announcements  (0)
 - Annoyances  (0)
 - Career_Advice  (0)
 - Domains  (0)
 - Downloads  (3)
 - Ecommerce  (0)
 - Fitness  (0)
 - Home_and_Garden  (0)
     - Cooking  (0)
     - Tools  (0)
 - Humor  (0)
 - Notices  (0)
 - Observations  (1)
 - Oddities  (2)
 - Online_Marketing  (0)
     - Affiliates  (1)
     - Merchants  (1)
 - Policy  (3743)
 - Programming  (0)
     - Bookmarklets  (1)
     - Browsers  (1)
     - DHTML  (0)
     - Javascript  (3)
     - PHP  (0)
     - PayPal  (1)
     - Perl  (37)
          - blosxom  (0)
     - Unidata_Universe  (22)
 - Random_Advice  (1)
 - Reading  (0)
     - Books  (0)
     - Ebooks  (0)
     - Magazines  (0)
     - Online_Articles  (5)
 - Resume_or_CV  (1)
 - Reviews  (2)
 - Rhode_Island_USA  (0)
     - Providence  (1)
 - Shop  (0)
 - Sports  (0)
     - Football  (0)
          - Cowboys  (0)
          - Patriots  (0)
     - Futbol  (0)
          - The_Rest  (0)
          - USA  (0)
 - Technology  (1049)
 - Windows  (1)
 - Woodworking  (0)


Archives
 -2024  March  (164)
 -2024  February  (168)
 -2024  January  (146)
 -2023  December  (140)
 -2023  November  (174)
 -2023  October  (156)
 -2023  September  (161)
 -2023  August  (49)
 -2023  July  (40)
 -2023  June  (44)
 -2023  May  (45)
 -2023  April  (45)
 -2023  March  (53)
 -2023  February  (40)


My Sites

 - Millennium3Publishing.com

 - SponsorWorks.net

 - ListBug.com

 - TextEx.net

 - FindAdsHere.com

 - VisitLater.com