Welcome to The Senate Site

Monday, April 30, 2007

"Sufficient"

Today, Lt. Governor Herbert declared the signatures on the referendum petition sufficient to unlock the inherent power citizens hold and exercise a direct popular vote on HB 148.
Associated Press

Deseret Morning News

Salt Lake Tribune
We expect to vote this thing up or down next February 5th. Senator Scott McCoy posted some thoughts about this on the Senate Democrats Site.

Want a road map? The Lt. Governor's office produced this referendum checklist (PDF).

Distant Early Warning

Stateline.org had an article on this little storm cloud on our horizon: Abortion ruling sets new state battle lines.

"Prompted by the U.S. Supreme Court’s approval this month of a federal ban on a medical procedure known as partial-birth abortion, activists on both sides of the abortion battle are aiming their sights at state capitols, where new campaigns already are under way….

". . . 31 states [have] laws similar to the federal Partial Birth Abortion Ban of 2003 just upheld by the Supreme Court. The state laws were blocked by federal courts following an earlier U.S. Supreme Court decision — Stenberg v. Carhart (2000) — that overturned partial-birth abortion bans in Nebraska and other states.

"Because the high court’s latest decision veered away from that ruling, laws in two of the states – Missouri and Virginia – were sent back to appellate courts for reconsideration within days of the Supreme Court decision. Court cases involving bans in Michigan and Utah also could be affected by the court’s ruling, legal experts said."

Friday, April 27, 2007

Riding into the Sunset

John Massey, Utah’s Legislative Fiscal Analyst, is retiring after 20 years of service to the state.

John is as kind, smart, conscientious and professional as they come. We'll miss him.

Read the press release here.

Thursday, April 26, 2007

Contempt

By Lyle Hillyard
Utah State Senator, District 25

The front page of today's Logan Herald Journal said "Logan senator held in contempt."

It’s not true.

Earlier this month I received papers asking me to appear for jury duty. I am willing to do so, although I would likely be one of the first invited to leave because I’m a trial attorney. The problem was that they asked me to appear on the same day the Senate had scheduled an Extraordinary Session to – ironically – confirm new judges. We also confirm other gubernatorial appointees and work in committees throughout the day.

I called the Jury Clerk and explained. She told me just to write a letter of explanation to the Court. I did. Due to a staff miscommunication, that letter was not faxed to the Court until the afternoon before I was supposed to be in both places. We also delivered a hard copy of the letter. Although I didn’t see a deadline on any of the papers I received, they said my letter arrived too late. I can appreciate that.

On Saturday, I received a request for me and eight others to appear before the judge and explain why we were absent last Wednesday. I will do so and plan to abide by whatever decision or penalty he feels is appropriate.

There’s a significant difference between being cited on a question of contempt and actually being held in contempt. Most of the details in the Logan Herald Journal story were accurate, but the first part, including the headline, was dead wrong, and a little inflammatory. Most people get their impressions of the news from the headlines. I hope the papers can correct the misinformation before it does any damage.

Wednesday, April 25, 2007

Balance

An excerpt from page 4 of the 2007-2008 Appropriations Report.
Structural Balance

Utah's budget for FY 2008 has a $5 million structural surplus. From a bond rating agency's point of view, that is a positive thing.

Rating agencies like Standard and Poor's, Moody's, and Fitch rank a state's creditworthiness based in part on the state’s abilities to meet its future obligations. Since a structural surplus means that ongoing revenues are greater than ongoing obligations, rating agencies view them positively. Utah has a AAA rating from each of the three rating agencies, and the FY 2008 structural surplus will help to protect that rating.

Where did the money go?

You've probably asked yourself Where did all the state money come from? and Where did it go?

You're in luck.

All million or so pages of the 2007-2008 Appropriations Report are now available on-line.

Pirates

Captain Jack Sparrow once said, "The only rules that really matter are these: what a man can do and what a man can't do." Towner talks about Shurtleff and Rolly in the Spyglass. Too bad. It would have been a good time - not that leadership had yet agreed to dress for the occasion . . . .

Tuesday, April 24, 2007

Gonzales v. Carhart

Last week the United States Supreme Court upheld a federal partial-birth abortion ban. One of our attorneys gave the decision a scrutinizing squint.

Here is the memo.

Doubletake

It's no secret that Google is uncomfortable with Utah's Trademark Protection Law. Maybe it's a bad law. Maybe it's not. We're open to the discussion.

Nonetheless . . .

try to purchase the keyword "google" on Google and this pops up:

Monday, April 23, 2007

Watch your [referendum] language

There’s been just a little confusion in the Deseret Morning News and the blog world over who will draft the ballot title language for the voucher referendum.

By law, that job falls to the non-partisan attorneys in the Office of Legislative Research and General Counsel.

They take this responsibility seriously. No legislator or partisan staffer will even see their draft until sometime after April 30, when they send the ballot title language to the Lt. Governor’s Office. At that time, we expect nothing more or less than ballot question language that is an impartial and accurate summary of what the referendum will do.

More info on KCPW:
On April 30th, the Lieutenant Governor will announce whether either referendum received enough signatures to land on the ballot. Then, Legislative Research and General Counsel will have 15 days to write the ballot language. If voucher opponents are unhappy with the language, they can challenge it in court. Utahns for Public Schools spokesperson Lindsay Zizumbo says the group is expecting the language to be impartial and clear for voters. But, she adds, the group has a team of lawyers ready to fight "whatever battle is going to happen."

. . . On Friday, a Governor's spokesperson said Huntsman is leaning toward adding the voucher issue to the presidential primary ballot in February.

Teachers Salary

Op-ed piece in the Standard Examiner by the House Leadership Team: Every single public school teacher in Utah will receive the promised wage.

The House and Senate are united on this one.
"The Legislature made it expressly clear in the bill's intent language, and in the media, that each teacher was to be awarded a $2,500 raise. Rather than allow districts to pass on a smaller raise to teachers, we intend to fulfill our commitment."
If necessary, we'll . . .
". . . pass a supplemental appropriation bill in the next general session to enhance the $104.6 million that has already been set aside. Every public school teacher will receive a $2,500 gross pay raise.

"We thank our teachers for their work educating our rising generation. We know they labor often times in obscurity and at great personal sacrifice."

Thursday, April 19, 2007

Liaoning

By Taowen Le
Professor of Information Systems and Technologies at Weber State University
and
Provincial IT Representative of Liaoning Province

A. Quick Facts about Liaoning Province

With a population of 42 million and as the most industrialized province of China, Liaoning Province is one of China’s first regions opened up to the world. It not only has the best of China’s transportation and communication systems, it is also one of China’s most important industry bases. In addition, since the 1950s, Liaoning Province has been co-leading the country with Beijing in education, sports, and cultural richness.

Situated at the center of Northeastern Asia, Liaoning is about 6 hours of drive or 1 hour of flight northeast of Beijing. The province consists of 14 large or middle-sized administrative cities including world-known cities of Shenyang and Dalian. While Shenyang is the political, economic, and cultural center of the entire northeastern China (there is an American consulate in Shenyang), Dalian is a world-level city of light industry and high technologies. Anshan, Liaoning’s third largest city, is also a well-known city of heavy industry.

With a solid economic foundation and abundant economic strength, Liaoning has maintained rapid economic growth during the past two decades. Under China’s recent economic initiatives, billions and billions of central government funding has been pumped into Liaoning Province to further its growth, which makes Liaoning Province an increasingly attractive place of abundant business opportunities for the rest of the world. Today, many of the world’s Fortune 500 companies have established operations in Liaoning Province.

B. The Utah Legislative Visit

The Utah legislative delegation will visit Shenyang, Dalian, and Anshan during their visit to Liaoning Province. They will spend two days in Shenyang, the capital city of Liaoning Province - and home to about seven million people - two days in Dalian, the second largest city in Liaoning and one day in Anshan, the third largest city in Liaoning and also a city of multi-million people.

They will be holding talks and meetings with their legislative counterparts, and other top provincial and city government leaders including provincial and city department leaders, provincial and city business, industry, education, and cultural leaders; they will also site visit businesses, schools, and industry parks.

As a delegation, we lay groundwork for eight key long-term outcomes:
1. Pave the road for Utah businesses

As the world economy becomes more and more globalized, business competition often occurs beyond traditional constraints. Where Utah businesses have not even set their feet on, companies from Europe, Japan, South Korea, and other states in the U.S. have already thrived. Such is Liaoning Province. However, while business organizations in Utah conduct their businesses typically without government involvement, Asian governments usually take a much bigger role. Through meetings with law makers and government executives in Liaoning Province, Utah legislators will gain first-hand understanding of how things work there; they will also resolve with their counterparts in Liaoning any issues or concerns they perceive as their understanding deepens. Doing so, they will pave the road for Utah businesses.

2. Create international opportunities for Utah businesses

As a highly industrialized province, Liaoning has many market segments where Utah businesses could have a significant share. For example, pollution control and environment protection is one area where Utah companies could be very profitable. Mines, steel industry, computer industry are just a few other possibilities. More importantly, Liaoning is the leading province in Northeastern China. As Utah businesses establish their presence and reputation in Liaoning, they will be able to expand into the market of the neighboring provinces easily. Through meetings with business and government leaders in Liaoning, Utah legislators will be able to create and cultivate international opportunities for Utah businesses.

3. Create new export and job opportunities for Utah

As export constitutes an important segment of Utah’s economic growth, more export from Utah means more job opportunities for its people. Through discussions and negotiations with Liaoning’s economic leaders, Utah legislators will broaden export channels and thereby generating new job opportunities for Utah.

4. Market Utah to China and bring investment to Utah

When speaking of China, many often think of China as a country attracting investments from the rest of the world; they fail to recognize the fact that as China’s economy becomes stronger, Chinese companies are also actively seeking to invest in foreign countries. As one of the most livable places in North America, Utah has many unique strengths not available in other places such as its clean natural environment, safe social environment, unique cultural richness, and abundant quality human resource. During their trip to Liaoning and through Chinese media, Utah legislators will market Utah to China not only through their verbal presentations, but also through their personal images as dependable and honorable leaders in Utah.

5. Create new channels of cultural exchange for Utah

Liaoning is a leading province in China in cultural richness. Utah also possesses unique cultural strengths. Cultural exchanges between Utah and Liaoning would not only enrich the lives and improve the mutual understanding of both peoples, but also foster new trade opportunities between Utah and Liaoning. Through meetings with cultural leaders of Liaoning Province, Utah legislators will be able to explore and create new channels of cultural exchanges for people in Utah.

6. Create opportunities of educational compliments for Utah

Liaoning is also a leading province in China in education. Its grade school system possesses many unique strengths that could be absorbed by Utah schools; likewise, Utah schools have many unique programs that could benefit schools in Liaoning. Through discussions with Liaoning’s educational leaders and practitioners and through first-hand school visits, Utah legislators could open up education channels with Liaoning that would benefit Utah’s education system and students of the state for many years to come.

7. Strengthen a government-to-government relationship for long-term benefits of Utah

Creating, maintaining, and cultivating a government-to-government relationship for the long-term benefits of peoples on both sides takes sincere efforts. The exchange of official visits is not only a diplomatic symbol of dependableness and trustworthiness, but also a necessary process that allows both sides to implement and cultivate the relationship for the benefits of both peoples.

8. Help establish world peace along the way

The world today has far too much misunderstanding about the U.S. and its people. Many people mistakenly believe bringing world peace is the task of federal governments only. Despite the sad reality that whenever peace is broken, it is the ordinary people that suffer, they sometimes fail to realize that true peace comes only when there is true mutual understanding and true mutual respect among different peoples of the world. Mutual understanding and mutual respect could not possibly be achieved without communication and exchange among the peoples at all levels. During their visit to China, Utah legislators will be able to discuss face-to-face with their Chinese counterparts any concerns people in Utah might have about China. Directly or indirectly, such mutual understanding will inevitably influence the way they make laws and regulations there.
[Editor's Note: Taowen Le has worked with us to promote a Utah-Liaoning connection for over two years. He has been instrumental in our developing friendship with China.]

April 19, 1775

The North Bridge at Concord. You can see the monument on the opposite side.


Thanks to Martine Smith for the great picture! She took it on a trip to Boston last May. Click to enlarge. I left it big so our 37 freedom-loving readers can use it for desktop wallpaper.

More here.

Giant Step Closer to a Fourth Seat

From the DC Vote Crowd:
DC Voting Rights Act Passes the House, Bill Moves to Senate
Passage Viewed as the Greatest Victory in a Generation

The DC Voting Rights Act (H.R. 1905) passed the House of Representatives today. This historic act marks the first time in a generation that the House of Representatives passed a bill to give the nearly 600,000 tax-paying American citizens living in the District of Columbia a voting member of Congress. [No mention of Utah's Fourth Seat. Typical!]

The bill was pulled from the House Floor last month after three legislators tried to attach a provision that would strip DC of its gun laws. The DC Voting Rights Act returned for passage just days after nearly 5,000 marchers converged on the Capitol for the Voting Rights March on April 16.

The following is a statement by Ilir Zherka, Executive Director of DC Vote, the organization leading the advocacy effort for the DC Voting Rights Act. The statement can be quoted in part or in full:

"Thousands of us turned out this week to demand the vote, and Congress listened. We have had an uphill battle, and DC's struggle with Congress has often felt like David vs. Goliath.

"Today we celebrate a hard-fought victory and roll up our sleeves for the Senate. We will have a battle in the Senate, but we have democracy on our side."

Supporters and media are invited to join DC Vote, the Leadership Conference on Civil Rights, and our coalition for a toast at Marty's on Capitol Hill after the vote today. Marty's is located at 527 8th Street, SE across from the Eastern Market Metro stop.

###
More info in the Tribune and Deseret News.

Wednesday, April 18, 2007

April 18, 2007

The flag at half-mast.


We met today in Senate Chambers to confirm the governor's appointees. A snowstorm blew in from the Great Salt Lake, chased - hours later - by clean April sunshine.

Tuesday, April 17, 2007

The Middle Kingdom

By John Valentine
President of the Utah State Senate

China is in the news again on technology and trade issues .

They are a good people, an ancient civilization, and are emerging as a phenomenal economic power. I believe the unfolding story of the 21st century will largely be centered on China.

The world is becoming flatter, if you believe Thomas Friedman, but it is also intricate, moderately dangerous, and colored by a thousand chapters of culture, history, tragedy, and pride.

Our actions as a people, state and nation have consequences. We are no longer shielded from the political and economic realities far beyond our mountains.

We'd be dumb as rocks to neglect opportunities to learn more about our neighbor to the west. We need to build genuine friendships and a positive working relationship with our counterparts in the Middle Kingdom.

I am sending a delegation of state senators to China in July. We'll keep you posted here on the Senate Site as events progress.

Trademark Protection Talk

Matthew Prince and Pete Ashdown hash out the Trademark Protection Law on KCPW.

Civil, articulate and educational for all parties. Good job, Lara. Great discussion.

From the KCPW Site:
The showdown between Google and the State of Utah with Pete Ashdown of Xmission and Matthew Prince of Unspam. Trademark issues and the Web on Monday's Bottomline.
Here's the MP3.

Energy and Natural Resources

The illustrious Senator Bramble will be testifying today in Washington, D.C. (What? Another junket?!)

Specifically...
Subcommittee on Energy and Mineral Resources
Oversight Hearing on “Implementation of Title III, the Oil and Gas Provisions, of the Energy Policy Act of 2005”
Tuesday, April 17, 2007, at 2:00 p.m. (12:00 p.m. MST)
Room 1334 Longworth House Office Building
You can listen live on-line on the committees website.

Monday, April 16, 2007

Spring!

Springtime erupted at the Capitol last week.



Beautiful.

Tuesday, April 10, 2007

Senator Mayne

By John Valentine
President of the Utah Senate

Painful news for the entire senate family. Ed and Karen, you are in our hearts and prayers.

Grist for the Mill

The Daily Herald: The moral case for vouchers
. . . Utah's voucher experiment should be welcomed. It offers a practical answer to some entrenched problems in the public schools, and it doesn't cost any more than we're spending already. The ongoing dollar commitment for administration -- $100,000 per year -- is a drop in a massive bucket. Utah's commitment to education is about $3 billion a year. . . .

The whole issue turns on a single question:

Whose money is it? Or, put another way, do tax dollars properly adhere to the individual student for whom education is compulsory, or does it "belong" to the public school bureaucracy.
It's a cerebral piece - great food for thought - but a little long to quote in its entirety. Parent choice advocates will like it. Neither side should ignore it.

Monday, April 09, 2007

Referendum on the Horizon

We like what Death Knell has to say on the referendum:
The referendum retains power in the hands of the people of this country. That is where it originates and that is where it should remain.

Once the process is initiated, however, we take upon ourselves the responsibility of carefully reviewing and researching the question before us. The legislators who voted on it initially certainly put in the time and effort to understand this voucher system. We owe it to ourselves to do the same.
Best of luck to all citizen legislators. May the discussion be respectful and informative, and may the final decision be a good one for our children and grandchildren.

Guest Blog: Constitutionality of the Trademark Protection Act

By Matthew Prince
Adjunct Professor of Law
John Marshall Law School

There has been some question over whether Utah has the right to pass the Trademark Protection Act. Santa Clara University Law Professor, Eric Goldman, suggests that SB236 may be a violation of the so-called Dormant Commerce Clause. To understand his point, and why he is wrong, you need to understand both the Commerce Clause of the U.S. Constitution as well as the history of state trademark statutes in the United States.

The Commerce Clause of the U.S. Constitution was enacted to ensure that we had one cohesive, federal system. That does not mean that every state has to have the same laws, but rather that laws do not discriminate against out-of-state businesses. An old-school Commerce Clause case would involve one state erecting a tax on out-of-state residents. For example, imagine Colorado passed a law which erected a toll booth at the Utah-Colorado border and charged everyone with a non-Colorado license plate a fee as they crossed. That would be a classic violation of the Commerce Clause because the toll booth discriminated against out-of-state residents. No one has alleged that the Utah Trademark Protection Act discriminates against out-of-state businesses in this way.

Because there is no discrimination against out-of-state businesses, critics of the Utah Trademark Protection Act must turn to a more controversial constitutional doctrine: the so-called Dormant Commerce Clause. Instead of one state overtly discriminating against out-of-state residents, the Dormant Commerce Clause is a judicial extension of the Commerce Clause that says states may not "unduly burden" interstate commerce. Professor Goldman, and others, argue that the Utah Trademark Protection Act potentially violates this principle.

But they are likely wrong for two fundamental reasons.

First, in order to "unduly burden" interstate commerce a statute needs to create a burden. To understand why this isn't the case in this instance, you need to understand how search engines sells keyword advertising. For example, check out this web page in on Google's AdWords website. Google, and other search engines, claim to allow advertisers to select to display their ads not just on a regional level but down to a neighborhood level. In order to allow this, the search engines already have to be tracking the geographic location of every user searching for terms on their sites.

Try it yourself. Search for "Honda Dealer" at www.google.com. I am writing this from Park City, Utah and, when I run this search, I get ads for Larry H. Miller Honda, Stockton to Malone Honda, and Ken Garff Honda. Your results may vary, depending on where you are located, but the results I get are local Honda dealerships within 30 miles of my home. These dealers have not purchased ads for the entire country on the fanciful hope that a Utah searcher may stumble across their ads. Instead, Google has allowed them to purchase ads and then restrict their display to only those searchers within the state. If search engines are already restricting searches based on the searcher's geographic location, then what is the additional burden preventing them from complying with Utah's law? Moreover, how it is an "undue burden"? The answer is: it isn't.

Second, in order to violate the Dormant Commerce Clause a statute must not be authorized by Congress or be a traditional state police power. In this case, Congress has specifically authorized states to regulate in the area of trademarks. Trademark is an interesting area of law that exists simultaneously on the state, federal, and international level. Well prior to the enactment of Utah's law, all fifty states have their own trademark statutes with their own specific nuances. The right of states to pass their own trademark statutes is not only recognized by history, but also by the Lanham Act itself. This recognition trumps any potential Dormant Commerce Clause claim.

As the Supreme Court explains:
“When Congress so chooses, state actions that it plainly authorizes are invulnerable to constitutional attack under the commerce clause.” Northeast Bancorp., Inc. v. Bd. of Governors, 472 U.S. 159, 174.

“The limitations on state authority created by the Commerce Clause cannot be ascertained without reference to the relevant federal law” and if authorized by federal law cannot run afoul of the Commerce Clause.
Norfolk Southern Corporation v. Oberly, 822 F.2d 388, 393 (3d Cir.1987), upholding Delaware’s coastal zone statute which banned product transfer facilities from operating on the Delaware coast.
The Supreme Court has long observed with respect to the application of the Dormant Commerce Clause, that when “state or local government action is specifically authorized by Congress, it is not subject to the Commerce Clause even if it interferes with interstate commerce.” White v. Massachusetts Council of Construction Employers, Inc., 460 U.S. 204, 213 (1983) (holding that Commerce Clause did not prevent City of Boston from giving effect to Mayor's Executive Order requiring all construction projects funded with municipal monies to be performed by a workforce at least half of whom were bona fide residents of Boston), citing Southern Pacific Co. v. Arizona, 325 U.S. 761, 769 (1945); see also Sea Air Shuttle Corp. v. Virgin Islands Port Authority, 800 F.Supp. 293, 304-05 (D.Vi.1992) (port authority's actions were authorized under the proprietary powers exception to Airline Deregulation Act preemption and therefore did not violate the Dormant Commerce Clause); Bowers v. NCAA, 151 F.Supp.2d 526, 539 (D. NJ. 2001) (finding similar implicit authorization by federal statute).

In all the Supreme Court cases cited above where state statutes are upheld, virtually none of the delegation of authority from a federal statute are as clear as the Laham Act’s delegation to the states of the right to set the terms and conditions under which their trademarks apply.

Moreover, the history of state trademarks stretches back to the birth of our nation and is a right that is traditionally held by the states, something repeatedly and convincingly considered by courts looking at whether a state has the right to act. Therefore, given the Lanham Act’s clear delegation, overwhelming precedent, and the traditional history of state trademarks, the Commerce Clause analysis would likely never come into play.

This is all beside the fact that every sitting Supreme Court Justice, except the Chief Justice and Justice Alito, has been critical of so-called Dormant Commerce Clauses analysis. See Quill Corp. v. North Dakota, 504 U.S. 298, 309 (1992) (Stevens, J., writing for a unanimous court) (recognizing that the Commerce Clause “says nothing about the protection of interstate commerce in the absence of any action by Congress”); Wyoming, 502 U.S. at 461-62 (Scalia, J., joined by Rehnquist, C.J., and Thomas, J., dissenting) (describing the “negative Commerce Clause” as “nontextual”); U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 797, n.12 (1995) (Stevens, J., joined by Kennedy, Souter, Ginsburg, Breyer, J.J.) (“[T]he Constitution is clearly silent on the subject of state legislation that discriminates against interstate commerce.”). The Supreme Court itself has cautioned against an over-implication of the so-called Dormant Commerce Clause, warning that it is not in the text of the Constitution but instead a “judicial creation.” See, e.g., C&A Carbone, Inc. v. Clarkstown, 511 U.S. 383, 401 (1994).

Remember, this is not a part of the U.S. Constitution but instead a doctrine that has been invented by courts. It can just as quickly be disavowed by the same courts. Especially when, as here, real harm is being done to the real economic interest of trademark holders.

One of the best aspects of the U.S. federal system is that each state can function, in the words of Justice Brandeis, as a laboratory for democracy. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). We all learn in third grade civics class that one of the strengths of our country is that states can experiment with new ideas. The best ideas rise to the federal level. I don't know whether the Utah Trademark Protection Act will rise to this level, but the level of attention it has drawn from trademark holders and search engines alike indicates that this is at least an issue that warrants discussion.

Leaving Bad Policy Behind

DNews Editorial: NCLB's 'special' education

Word from Georgia, Missouri, Texas, Ohio, Arizona, Utah, Etc.

Stateline.org: Vouchers see mixed success this session
Last year was a banner one for the choice movement. Of 28 states that considered bills, eight enacted laws to create or expand voucher or tax credit programs. Currently, 12 states and the District of Columbia have some type of choice program, ranging from personal tax credits to vouchers for kids in failing schools.
Interesting, balanced article.

Word on the Street is that our anti-voucher group has amassed enough signatures to put an referendum on the ballot. If so, some congratulations are in order – that was not an easy task.

Friday, April 06, 2007

Leave those campaign signs alone

So says Justice William Pitt. Six months in jail for a Grantsville sign yanker, plus nine months probation and an $850 fine.

Anyone who has hammered signs in the dark hours of frozen October, only to find them missing a few days later will think the punishment is about right. Poor guy.

Shenpa Warrior and Voice of Utah weigh in.

Guest Blog: Utah Trademark Protection Act

By Matthew Prince
Adjunct Professor of Law
John Marshall Law School

There have been a number of questions surrounding the Utah Trademark Protection Act (SB236) and the new Electronic Registration Mark the act creates. In order to understand the new law, it is important to understand the problem it addresses.

If you ask people how Google makes money, the answer inevitably comes back either: 1) "I don't know" or 2) "They sell ads." The later is correct, however it misses the most interesting part of the story. Google, and other search engines, as well as popup advertisers, like WhenU.com, sell what is referred to as "keyword" advertising. Ads are triggered based on searches that are run or terms that appear on web pages. In other words, a dentist with a liberal attitude toward nitrous oxide could buy the term "pain free dentist, utah" and whenever someone searched for that term, or surfed to a page that contained it, the dentist's ad would appear.

The above example of the dentist is not controversial. What is controversial, on the other hand, is when the keyword being purchased is a trademark of another company. Companies spend millions of dollars to create brands and trademark law has existed for decades on the state, federal, and international levels in order to protect that investment. Contrary to the protection trademarks are supposed to afford, the current practices of search engines and pop-up advertisers allow competitors to inexpensively capitalize on the goodwill of a brand in order to promote themselves.

A recent example illustrates the point. You may have seen a televised advertising campaign to promote Pontiac brand cars. "Pontiac" is a trademark of the General Motors corporation. The ads encouraged viewers to go to Google and search for "Pontiac" in order to learn more. To General Motors' surprise, Mazda had purchased the keyword "Pontiac" and viewers were shown ads for the competitor's cars. A substantial portion of the attention Pontiac had spent millions of dollars generating for their own brand was diverted by Mazda. This diluted Pontiac's brand and was essentially a form of corporate identity theft. Imagine if the same thing happened to your company -- and without Utah's law there is nothing stopping it -- and you can understand why Pontiac was so upset.

It may seem Pontiac could have protected themselves by purchasing ads for their own trademark. Unfortunately for trademark holders, however, the systems search engines run typically works as an auction. Generally, the more money you bid, the more likely it is your ad will appear. If Pontiac had bid for their trademarked keyword, Mazda could have simply bid more. This creates an arms race that benefits no one other than the search engine or pop-up advertiser. Even if a company is able to buy up all the search terms around their brand -- as Pontiac has subsequently done -- why should they have to? Doing so is the equivalent of paying protection money to secure rights that should already be protected by law.

Several trademark holders have sued disputing the practice of search engines and popup advertisers. Unfortunately for the mark holders, courts evaluating the cases have said the Lanham Act, the federal trademark law, never contemplated this situation. That is not surprising since the Lanham Act was implemented before the Internet and the idea of a search engine was even a twinkle in Al Gore's eye. The lack of clarity in existing trademark law has meant courts have had to tell brand holders who need this protection that they must look to the legislatures and clear up the law. That, of course, is what SB236 was passed in order to do.

It is important to note that Utah's legislature, in enacting the Trademark Protection Act, was not making up wholly new rights. In fact, with the exceptions of the United States and Canada, in most countries the practice of using someone else's trademarked term to trigger an advertisement is considered a violation of trademark law. Google, and other search engines, respect international law and will not use registered trademarks in order to trigger ads that appear in overseas (see Page 13 of this PowerPoint presentation from Google's own attorneys where they explain the company's policy).

Try it yourself. As I write this, if you search for "BMW" at www.google.de -- the German version of Google's site -- you get only ads that are friendly to the car company. If you search for "BMW" on www.google.com -- the U.S. version of the site -- the first ad that appears in the right hand column is for Infiniti. The Trademark Protection Act merely extends the same rights already enjoyed by mark holders throughout the rest of the world to Utah.

While undoubtedly search engines, popup advertisers, and their supporters will rail against the Utah Trademark Protection Act, the vast majority of companies in the world, who rely on brands to sell their products, will see it as a benefit.

Utah has long prided itself as a business-friendly state. Utah's offering enhanced protections to trademark holders through the creation of the Electronic Registration Mark proudly continues this tradition.

Thursday, April 05, 2007

Identity Theft: The Next Generation

By Dan Eastman
Utah State Senator, District 23

We passed a bill this session that would protect the value of trademarks held by Utah companies. People who own a trademark or hope to own one will love this new law. People who want to carjack someone else's trademark will hate it.

Electronic trademarks are protected around the globe, just not in the U.S. or Canada. There seem to be few applicable laws with teeth. Trademark violations on the internet are rampant. In some cases people invest millions on their trademark, only to have their customers’ on-line word searches shanghaied by a pirate who bought off the search engines.

John Battelle posted an excellent case-in-point on SearchBlog.

In my mind this amounts to little more than a creative new kind of identity theft. I don’t think that’s right.

This year the Utah Legislature fashioned an effective, private-sector solution.

We’ve been catching hell from the fringes on this issue (see here, here, and here).

I make no apologies. Utah is a highly tech-savvy, super business-friendly state. We have more computers per capita than anywhere else in the nation. It’s a wonderful place to live and a great place to do business.

This new law will make it even more so.

If you want to explore the issue a little deeper, this site discusses these kinds of trademark issues overseas. We'll also have some follow-up right here on the Senate Site.


[Update:] Matthew Prince discusses this new law here and here.

Corner Kick

By Sen. Rodney R. Dangerfield

It’s historical reality that Senate Democrats helped save the day for soccer fans. Yet they get overlooked. Probably by accident. Understandably, that can cause some angst. The Senate Democrats set the record straight on their [increasingly cool] blog site.

Wednesday, April 04, 2007

Justice of the Supreme Court

By John Valentine and Curt Bramble
Senate President and Majority Leader

Last night we had the high honor of visiting Michael Young's home and spending a few hours with a distinguished group of our colleagues and Supreme Court Justice Clarence Thomas. (Bramble: It was so high-brow I wondered what I was doing there.)

We were impressed. Justice Thomas is a straight talker. He was engaging, entertaining and very insightful on issues facing the nation.

One thing that stood out was his comment on the current lack of common ground between the two political extremes. Somehow, he said, we need find a common area in the middle to communicate.

He talked about everyone’s individual potential. Schools, especially colleges, should be an incubator for ideas – all ideas. And all ideas should be given a fair hearing. We shouldn’t cut people off just because we don’t love the ideas being expressed.

Yeah, it hit home.

He talked about how schools should be a training ground of practicality, preparing young people to engage society and be successful. He recounted the days when he was just out of school and carrying some heavy financial burdens. At one point a banker looked him in the eye, and said, “Can I trust you?”

Of course he could. He did. And it turned out to be a pivotal moment in the Justice’s future. Justice Thomas encouraged us all to be aware of opportunities where WE - like that banker - might be the one person with power to set an individual on a path of success.

Justice Thomas was human. He laughed. He was open, happy and seemed to hold a very optimistic view of life. We felt it was a privilege to share an evening with him – and hope he won’t mind us giving Senate Site readers just a glimpse into the experience.

Opportunity

Looking for a good internship?

We need a research assistant to provide non-partisan staff support to the legislature. It’s a paid position, full-time for the summer and part-time for the 07-08 school year.

Click here for info.

Monday, April 02, 2007

The Ref

The Utah Senate Minority Leader was featured in today’s UPD. An excerpt:
Mike Dmitrich calls them as he sees them.

He learned that in the coal mines of eastern Utah.

That’s where his career started, just like his dad and his granddad. For the state senator, it has had a happier outcome. Both of his progenitors gave their lives in the mine, Grandpa Isaac Milovich in 1936 and his father, Dan, in 1957. They were two Serbian immigrants who hoped to find a better life here, and died trying.

And their descendant has spent his life making things better for Utahns with faces smeared with coal dust and hands gnarled from cleaning ditches and fixing fence lines.
Great profile. He deserves every compliment and more.

Click here to read the whole thing.

    Senate Site Feed

Home | Profiles | Archive | Links | Official Information | About | Contact | Government 2.0 Lab | Back to Top
© 2008. All rights reserved. Designed by Jeremy Wright & His Brother-In-Law