#michigan and minnesota had similar cases that were DISMISSED

[frogeyedape]

Trump barred from Colorado primary ballot by Colorado Supreme Court ruling Trump ineligible for another presidency due to engaging in insurrection. It was a close decision 4-3. Link to NPR in subsequent reblog.

[marymosley]

The Adams Controversy Highlights The Growing Trivialization Of Racism Charges

         Many viewers were surprised last week when, in the middle of a pandemic briefing, PBS reporter correspondent Yamiche Alcindor asked Jerome Adams to respond to claims that he recently made racist comments.  Rep. Maxine Waters declared “Donald Trump has found a new vessel by which to spew his racist dog whistles.” For those of us in academia, it was neither a surprising nor unique moment.  On campuses across the country, it is now routine for statements found objectionable to be labeled as racist or part of the ambiguous category of “microaggressions.”  Indeed, labeling people racists is now a common form of political criticism. It is often a conversation and career stopper for the accused.  Few people want to defend someone accused of being a racist, only to be accused themselves. 

The greatest problem with this trend in our political discourse is that it diminishes actual racism and the ability to call out real cases.  There is real racism that must be addressed in our society. However, if everything is racist, nothing will eventually be viewed as racist or racism will cease to be a term of significance. 

         Adams, the nation’s first black Surgeon General, has been speaking directly to “my community” as someone who represents the “legacy of growing up poor and black in America.” At the press conference on pandemic responses, Alcindor asked Adams to address all those “offended” by the fact that he “said that African Americans and Latinos should avoid alcohol, drugs, and tobacco. You also said do it for your abuela, do it for Big Mama and Pop-Pop.” Adams responded and explained that he was using “the language that we use and that I use.”

Many declared that the advice to curtail alcohol and drugs was a racist stereotype of minority communities. Yet those comments are similar to comments made in the past by Democratic and liberal figures. Moreover, Adams has given the same advice to other communities.  However, Adams was appointed by President Donald Trump and soon people were online saying how deeply offended they are over the inherent racism in his warnings or his use of nicknames for parents and grandparents.  One commentator portrayed Adams as not really part of that community: “The Surgeon General is trying to relate to a life he never lived, listen to his voice and they way he speaks.” 

Imagine if a Trump official assumed the background of an African-American reporter based on how she spoke.  Adams achieved great distinction in his life, particularly as someone who was raised on a farm in Maryland and made it through school on scholarships.  Yet, activist Blaine Hardaway declared “Trump sent the only black guy on his team out to chastise black and Latino people for smoking and drinking, as if that’s the reason our communities are predisposed to this virus. Just disgusting.”

Adams could have spared the effort.  These attacks are meant to indelibly mark someone, not elicit a response. Critics know that they can isolate people by labeling their views as racist. 

The trend has continued unabated with the pandemic.  For example, there is a raging debate over the concealment of the origin, early spread, and lethality of the virus in China. However, the Council of Chief Diversity Officers at the University of California has issued a “guidance document” to tell students to stop others from referring to the “Chinese virus” or “Wuhan virus.” Michigan State University warned students that use of anything other than coronavirus is unacceptable as part of a warning on hate speech pledge circulated around the school. Some university officials told students to report students using the term as “racist.” 

For the record, I wrote early that I would not use the term Chinese virus rather than the official name. However, I did not reject it because it is an inherently racist term – any more than the use of the Spanish Flu, Zika, or Ebola.  Indeed, it was the term used by many scientists in the early stages and even liberals. HBO’s “Real Time with Bill Maher noted correctly “Scientists, who are generally pretty liberal, have been naming diseases after the places they came from for a very long time.”  

Yet, racism is a useful label to use when you are attacking free speech or academic freedom.  Many writers seeking to punish or silence others for opposing views have dismissed free speech arguments. While some writings can legitimately be challenged over racial concerns, there remains protections for unpopular and even offensive views. Yet, academics accused of espousing racially insensitive views are targeted for termination as “bad scholars” for holding such views. For example, Joe Patrice, who writes for Above the Law, called for the firing of Law Professors Amy Wax and Larry Alexander because he disagreed with an oped column on how social ills have followed the breakdown of what they call “bourgeois values” of the 1940s and 1950s like strong families, patriotism, and altruism.  They prefaced their analysis by noting that those values also came with racist, anti-Semitic, and other problems. Various Democratic politicians, including President Barack Obama, have criticized the decline of the family and similar values.  I actually disagree with key points of the column and others have raised questions over racial implications of some of the writings by University of Pennsylvania Professor Amy Wax. Those criticisms relate primarily to other writings of Wax, but this piece did declare that “all cultures are not equal.” However, rather than simply disagree with the merits of this column, Patrice told readers to ignore their express criticism of racism in the column and instead focus on “racially coded language” showing an affinity for “white superiority.” Again there is a good-faith debate to have over other writings by Wax involving racial stereotyping or insensitivity. Yet, even if one believes that Wax is using such coded language or advancing such views, most of us still value free speech and academic freedom as a protection and not willing to fire academics because critics accuse them of “belching out so many lies and half-truths” in opinion pieces.

         Even airing a defense by accused individuals is now viewed as facilitating racism. Patrice also aired an approving interview with The Nation’s Elie Mystal where Mystal attacked high school student Nick Sandmann in a controversy before the Lincoln Memorial with a Native American activist. The incident was widely misrepresented and Sandman received settlements from CNN and corrections to the early coverage.  However, Patrice agreed with Mystal’s objections to Sandmann wearing his “racist [MAGA] hat” and  the media airing interviews of Sandmann so this “17-year-old kid makes the George Zimmerman defense for why he was allowed to deny access to a person of color.” It is that easy. You falsely accuse a 17-year-old kid of being a vehement racist and then object to people interviewing him to hear his defense. 

The opportunistic use of this label results in tit-for-tat accusations. Trump called Bloomberg a racist for his stop-and-frisk policy despite Trump’s support for the policy. Joe Biden has also been accused of being a racist. Even deregulation by Democrats have been framed as a racist as opposed to an ill-conceived ideal. When Pete Buttigieg referred to his ties to the “American heartland,” former CNN anchor Soledad O’Brien called him out for using racist “dog whistles.”

         Once you start to treat opposing views or practices as presumptively racist, everything you dislike become vehicles of racism. meritocracy, Western literature, earthquake warnings, and the “white-nuclear family” have all been denounced as advancing racism. Even food controversies can be converted into racist moments today.  Patrice recently accused me of “delightfully passive racism” because I did not know what chicken tikka masala is.  Uber put out a list of the top orders during the pandemic by state.  The list was a surprising contrast of top ordered dishes from the mundane French fries (Arizona, Florida, Illinois) to the highly specific like Garlic Naan in Minnesota. Some seemed a bit exotic to be the most common dish ordered in a given state. I decided to share on Twitter as a light distraction from the grind of pandemic disaster stories: “The most popular uber eats orders in Oklahoma is spicy tuna roll and in both Missouri and Wisconsin crag Rangoon? California is chicken tikka masala? I don’t even know what that is beyond the chicken. If true, we have an outbreak of the panpompous.”

         That is all it took: racism and what Patrice calls “performative white nationalism.” I did not know what chicken tikka masala was and that made me the Bull Connor of the culinary arts. (In reality, as my exasperated wife and kids pointed out, I have had the dish and, while it is not one of my favorite Indian dishes, it is widely known by others). It was not enough to be clueless, however, I had to be racist. Of course, Patrice tellingly did not label the failure to remember the dish as racist until after he ridiculed my testimony in the Clinton and Trump impeachments hearings.

         There is no label quite as effective as racist. It is a claim that can never be conclusively rebutted so you simply dismiss any attempt as “performative white nationalism.” In the meantime, real racism is obscured by a wall of trivialized accusations. There continue to be acts that discriminate being people based on race and legitimate concerns over arguments that advance different treatment based on race and other immutable characteristics. It is important to have that discussion as a country. Those arbitrarily throwing around racism labels for political advantage only serves to give cover for real racism that continues to plague our country.

          Alternatively, everyone with opposing views could be a racist.  Or, a MAGA hat could be just a hat and chicken tikka masala could be a delicious, but sometimes forgotten, marinated chicken dish.

The Adams Controversy Highlights The Growing Trivialization Of Racism Charges published first on https://immigrationlawyerto.tumblr.com/

[ronlofland]

Cava v. Champagne: A Trademark Lawyer’s Guide

Those of you attending the annual International Trademark Association conference in Barcelona may be drinking a glass of Cava right now and wondering: what makes sparkling wine different from regular wine, and what is the real the difference between Cava and Champagne (or, as the great Zapp Brannigan pronounces it, “champagen”)? Those of us stuck at home and not allowed to go to Barcelona – and no, we’re not going to stop complaining about that anytime soon – may be wondering the same thing. Wouldn’t it be great if you could get a judge to explain it to you?

It turns out that the question is answered in more detail than you probably want by District of Minnesota Judge Joan Ericksen’s 35-page opinion in Roederer v. J. Garcia Carrion, S.A., 732 F. Supp. 2d 836 (D. Minn. 2010). In that case, the makers of CRISTAL Champagne (so named because it was sent to Tsar Alexander II in crystal bottles) brought a trademark infringement action against the makers of CRISTALINO Cava. The case was initially dismissed on laches grounds (CRISTAL waited to bring suit until about 15 years after CRISTALINO had entered the U.S. market), but the Eighth Circuit reversed and remanded, and the parties subsequently conducted a bench trial on the issue of likelihood of confusion. Judge Ericksen’s detailed findings and conclusions began as follows:

Still wine, or wine without bubbles, is made by a fermentation process that converts grape sugar into alcohol and carbon dioxide. The carbon dioxide in still wine is released by the wine producer after fermentation.

Sparkling wine, or wine with bubbles, is made using a second fermentation process that converts still wine into sparkling wine. According to the traditional method, also known as the “Method Champenoise” or “champagne method,” the second fermentation occurs in the bottle in which the sparkling wine is sold. The carbon dioxide is trapped in the bottle, dissolves into the wine, and escapes as bubbles when the sparkling wine is released from the bottle. According to the alternative “bulk” or “Charmat” method, the second fermentation takes place in a large tank or vat. After the second fermentation is complete, the contents of the tank are pumped into bottles for sale. The traditional method of producing sparkling wine results in higher-quality wine than the Charmat method.

Champagne and cava are both sparkling wines. When used properly, the term “champagne” denotes a sparkling wine made according to the traditional method from grapes grown in the Champagne region of France. A vintage champagne is made from grapes of the same year’s harvest. A non-vintage champagne is made from grapes of different years’ harvests. The term “cava” denotes a sparkling wine made in the Catalonia region of Spain.

Got that? Both Champagne and Cava are sparkling wines, the former made from a blend of Champagne-region grapes and the latter from mostly (95%) Catalonian Macabeu grapes. Both beverages are fermented by a variation on the “Method Champenoise,” also known as the “traditional method,” which is acknowledged as the most desirable fermentation process for sparkling wine (as opposed to, for example, the “Charmat” method, which is how the Italians make Prosecco).

In her likelihood of confusion analysis, Judge Ericken goes on to talk about perhaps the most important difference between Cava and Champagne – and one close to my heart– price point. At the time, CRISTALINO Cava sold for as low as 8 bucks a bottle, while CRISTAL Champagne was commanding between $200 and $280 a “pop” (a difference you can justify in a variety of ways, including history, aspirational cachet, and the length of time the wine is aged on the lees).  This price difference means that, although the products are certainly in commercial proximity (i.e., sold at some of the same stores), they are not directly competing.

Perhaps because of the lack of direct competition, actual confusion evidence was hard for the plaintiff to come by. Despite the fact that the products were on the market together for twenty years, pretty much the only evidence of actual confusion that the plaintiff was able to come up with was that one time, a guy in Michigan bought some bottles of CRISTALINO thinking they were CRISTAL; but it turned out this happened only because the letters “INO” were covered up by the price sticker.

So does that mean that CRISTALINO Cava won the case? No. The Court found that there were too many likelihood of confusion factors going the other way, most obviously the similar names, but also similar bottles and trade dress. On top of that, it is industry custom for prestige wine makers to produce lower-priced versions of their product for us unwashed masses, making it more likely that consumers would think that CRISTALINO was the official junior varsity version of CRISTAL. And as to the fact that the products obviously come from different countries, CRISTALINO had somewhat blunted the force of that distinction by advertising itself as “made using the traditional method with yeast from the Champagne region of France.”

The Court found that there was indeed a likelihood of confusion and, on July 27, 2011, issued a permanent injunction ordering the defendant to stop using CRISTALINO in association with the sale of Cava, unless certain conditions are observed, including that the word CRISTALINO be accompanied by the defendant’s house mark (e.g., JAUME SERRA CRISTALINO). The Court also required a disclaimer of any connection with CRISTAL Champagne. Of course, the practical result of this disclaimer requirement is that the words “CRISTAL® Champagne” are now printed on the label of every bottle of CRISTALINO Cava. C’est Law Vie.

Source: http://ift.tt/2qdKZwA