Tuesday, May 13, 2008

In Rem Action: U.S. v. Flash Drives

In law, there are two kinds of civil actions. The usual case is brought "in personam," meaning it is against a person. This is the usual So-and-So v. So-and-So kind of case in which the plaintiff claims the defendant did something wrong. Other actions are "in rem," meaning against the thing. In these cases, the very existence of the thing is the problem and it doesn't matter all that much who is at fault or who owns them (although the owner can show up and put on a defense for the stuff). In law school, the most famous in rem cases have to do with the seizure of pornographic films. They (the cases, not the films) have titles like "U.S. v. 250 Reels of Motion Picture Film."

This is relevant here because of the recent filing of U.S. v. 3,000 Microsoft Flash Drives in the U.S. District Court in Alaska. This was reported in Information Week, although the story appears to have been taken down (the link is to the Google cache). The flash drives include an unauthorized Microsoft Windows logo and were seized by U.S. Customs and Border Protection. CBP appears to be focusing on high-tech counterfeiting as there was also a recent case on counterfeit keyboards.

The Information Week article makes the interesting point about the diminishing value of the merchandise, which was seized in July of 2007. Because of the rapid advances in chip production technology, the seized flash drives are worth less every day. That, of course, raises the question of whether it is worthwhile to fight this case at all? It seems that the issue of infringement should be pretty clear unless the importer has some heretofore unproduced license to import products bearing Microsoft trademarks. It seems that if such a document existed, it would have been produced by now.

So, what is left? Is there an argument that the Windows logo is necessary to communicate compatibility with the OS? Not likely as the words "Microsoft Windows" with a prominent trademark disclaimer would have accomplished that. Further, a quick look at the six flash drives in my desk draw reveals that not one is decorated with a Windows logo.

Another alternative is proving that the merchandise was legally produced and is permitted entry to the U.S. as gray-market merchandise. We've discussed that before. That is also a tough, though not impossible, row to hoe.

I suspect, the U.S. Attorney's Office in Alaska is about to have a life-time supply of flash drives.

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