The Dark Side: I don't want to be a member of the State Bar

By David Ziemer Dolan Media Newswires MILWAUKEE, WI--At the end of Henrik Ibsen's play, "The Pillars of Society," after the so-called pillars of society have been shown to be a bunch of scoundrels, the boy Olaf declares, "I don't want to be a pillar of society." There is a big hullaballoo about pillars here in the Wisconsin legal community, too. The State Bar of Wisconsin is suing LexisNexis for trademark infringement. The State Bar claims the generic pillar logo that LexisNexis uses for its website, Lawyers.com, is too similar to the generic "Pillar Icon" that the Bar uses as its logo. I'm a Westlaw man myself, so I don't have a dog in this fight. "But wait," you say. "You're a member of the State Bar, so you do have a dog in this fight." To which I can only respond, "If that was my dog, I'd take it out to the back 40 and euthanize it. I'm only a member of the State Bar because the federal courts won't protect my constitutional right to freedom of association, and therefore, I have to be a member." I certainly hope the courts dismiss this action as frivolous and impose some serious sanctions. I'm not an expert in trademark law, but I know enough to know likelihood of confusion is an element of the offense. And there is really no possible way that anyone could confuse Lexis with the State Bar of Wisconsin. As I said, I'm a Westlaw man, and haven't used LexisNexis since law school, so I'm not really familiar with its products. But I know it's a private corporation that can only stay in existence if it provides quality service at a fair price. The State Bar, on the other hand, is a worthless organization that stays in existence only because every lawyer in the state is forced to support it against his will. The motivation of every trademark infringer, of course, is to be seen as somehow affiliated with the plaintiff, and bask in the glow of the plaintiff's goodwill, at no cost to itself. Many years ago, I was in a small town in Mexico, where they apparently don't have very strong trademark laws, and saw a restaurant named McArnold's. Instead of an arched golden "M" for a logo, they had a big yellow "M" with points at the top. You could also buy cigarettes in that town with packaging identical to that of Marlboro cigarettes, except they were called Montana cigarettes. Now that's trademark infringement. But, unlike McDonald's and the tobacco companies, all of which I love dearly, the State Bar has no goodwill that an infringer could usurp. It's a worthless organization that ... (Oh wait, I've already said that). I wonder if the Bar will go after its own members next. I'm sure there are many attorneys in Wisconsin who have some generic-looking pillar logo in their letterhead or on their business cards, although I've always been partial to generic-looking scales of justice myself. But those attorneys can't be said to be infringing either. No one would ever confuse a hardworking attorney, who provides valuable legal services to his clients at a reasonable fee, with an organization that arrogates its members' money through the threat of disbarment. Nevertheless, if the State Bar succeeds in its quest to punish LexisNexis, it is likely it will then turn its sights to its own members. Indeed, it will have to; if you don't enforce a trademark, you can lose it. Like every other lawyer in the state, I'm proud to be a member of the Wisconsin bar in good standing. But like little Olaf might say, "I don't want to be a member of the State Bar of Wisconsin." Speaking of confusion, that last statement of mine must be very confusing to anyone who isn't a lawyer. And yet, to all of us who are, it makes perfect sense. Entire contents copyrighted © 2011 by Dolan Media Company. Published: Mon, Sep 5, 2011