From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Thursday, 24 December 2015

BREAKING: Santa's General Counsel in shock resignation

Holly Night, Santa's GC, will
now finally be able to enjoy
the holidays (including the
festive twinkle lights), without the
ongoing threat of litigation
Last minute shopping, lacklustre Christmas lunches, overly polite chit chat at the office party and stacks of unmailed holiday cards.  The holiday season can make even the calmest person feel strained and stressed beyond all recognition. But who has the most stressful job this time of year?  Santa's General Counsel, of course.

Last week, prior to the excellent Letter from Santa on Section 52 (see post here), the AmeriKat and some dear friends were gathered around a dinner table musing on what being Santa's GC would really be like. It was concluded that it would be enough for any, otherwise dedicated employee, to throw in the towel.  Sure enough, the prophecy has come true, as the AmeriKat has now been passed a copy of Santa's GC's letter of resignation.  The letter, which should have been marked "Strictly Privileged & Confidential" (which goes to show how frazzled the GC is at this time of year), reads as follows:
"Dear Santa 
With regret, I resign from my position of General Counsel of Santa Claus, Inc.  Although I have greatly enjoyed my time here, my workload has become unbearable. Even though your big night is over and done with in less than 24 hours, your return to the North Pole merely marks the start of another 12 months of litigation and misery for me, not to mention the ever continuing escalation of my blood pressure. 
Despite my repeated warnings to you to curb some of your and your associates' riskier behavior, these warnings go unheeded in an increasingly litigious global environment.  I detail some of the most recent issues below:
  • Data protection:  In the wake of Snowden's NSA disclosures, the number of data protection and privacy complaints we have received has risen 420% in the last 10 months.  The complaints all share a common thread:  Why does Santa know when I am sleeping and why does he know when I am awake?  Why does Santa know if I have been bad or good?   In addition, many complainants allege that, in breach of numerous data protection laws, we are collecting people's personal data without consent by "making a list, and checking it twice".  Despite instructing top external counsel, at considerable expense I might add, we have yet to come up with a bulletproof defence to these complaints.  I have so far been able to stem the tide of litigation by responding that the complainants' only proof of alleged data breaches and privacy are the highly prejudicial and defamatory comments made in that song.  However, its only a matter of time before some crusader commences litigation and the extent of our ongoing breach comes out in discovery.  Which reminds me, I need to speak to you about our document retention policy.    
  • Animal welfare and the FAA:  I understand that keeping reindeer and flying to homes across the world to deliver presents is part of the whole "Santa experience", but the number of animal welfare and Federal Aviation Administration (FAA) complaints we get each year is surely not worth it. As to the former, the complaints are obviously without merit - the reindeer are treated like kings but that doesn't stop at least 1200 letters landing on my desk, all of which I have to respond to (these people should be more worried about the poor GC's inhumane working conditions).  The FAA, however, mean business.  In light of the FAA's Temporary Flight Restrictions (TFRs) - which are not temporary at all it seems - you and the reindeer can not fly at 5,000 feet or below without clearance to land at an airport.  Stop telling me that there is a "Santa exception" to the FAA's rules - there is not (despite the US Department of Transportation issuing you a special air transportation operating authority each year - by the way this year's has come through see link here).  Mrs Claus and I white-knuckle through every Christmas thinking you and the reindeer are going to get intercepted by F-16s.  In that event, I will really have an animal welfare issue on my hands.  
  • Misguided IP enforcement program:  Although you have considerable goodwill built up in your name, appearance and jolly demeanour that would prevent the free-riding on your goodwill, going after every unauthorized Santa impersonator and swag is just not possible given the size of our legal team (me).  Further, as previously advised, such a course of action would have terrible PR repercussions. I can see the headline now in the IP press "Santa's evergreen IP monopoly destroys Christmas for children around the globe".  Unless the Santa impersonators are bringing your goodwill into disrepute by way of the usual antics (drunkenness, "kissing Mommy", etc), you would be better off focusing your attentions elsewhere - perhaps by investing the legal spend in some good ol' fashioned R&D.  Now, if you want to go after the big boys who use your image (Hollywood, soft drinks manufacturers, etc) in order to establish a robust IP licensing program to bring in revenue, give me the word. 
  • Trade secrets: This one is a nightmare, Santa. I warned you we were doing inadequate background checks on the elves before hiring them. Well, we now have a problem. The elf we hired from the major logistics company has been accused of misappropriating trade secrets relating to their delivery route optimisation algorithm. Worse, however, he’s been working on our algorithms for the last 9 months so who knows what third party trade secrets he’s incorporated in them!? Could this even mean that all of our presents become “infringing goods” under that new European trade secrets directive when it comes in? Of course, we’ve also had that other elf leave us to join the toy company in you-know-where. He knows a lot about the new tooling set-up in our workshop, but given the diverse range of protection afforded trade secrets globally, I never know quite when we can stop them from taking our ideas.  
  • Cybersecurity: Another nightmare, particularly when combined with our data protection issues (see above). Lots of families depend on us for a happy Christmas. But does that make us an “operator of essential services” under the upcoming European Network and Information Security Directive? I suspect many parents would say we provide a “service which is essential for the maintenance of critical societal…activities”, but on the other hand we don’t seem to be what the directive really had in mind! Who knows. Anyway, sorting out the contracts for replacing our ancient IT network and complying with this directive is now my successor’s problem. Our data breach response plan hasn’t made it beyond its first draft, by the way.  
  • Patent Trolls and defensive patent strategy:  Two years ago, I advised you that we needed to divert some funds from the reindeer to plan our patent strategy, including acquiring some defensive patent protection in the event of patent litigation.  You responded that the reindeer deserved their annual 4-month vacation in the Maldives.  How does their little holiday look now that we are facing three patent claims from patent trolls? In case you didn't read my email, the patent trolls allege that we are infringing patents that invariably protect various methods for delivering packages by means of an animal-drawn vehicle wherein said delivery takes place on 25 December.  I have talked to our patent lawyers and they say that the patent claims at issue are likely obvious, but the cost of fighting these claims is going to put a huge dent into the elves's rehabilitation and physical therapy fund after the numerous hours they spend in the workshop.  Which brings me onto ...
  • The elves:  I am sick of the elves.  
The above are only the latest in a long line of nightmare matters I have to tackle day-in and day-out.  Yes, beating your criminal charges for breaking and entering and damage to property has become routine, thanks in part to me being on first name terms with every public prosecutor in the world (which reminds me, please stop landing on thatched rooftops - the reindeer cannot control their appetite).  And, yes, I can handle a product liability case with my eyes closed (though your risks in these cases would be halved if the elves ever bothered to follow the established quality control checks).  But, taken all together, its too much for one GC. 
Nevertheless, I wish you the best of luck in your future and may the next GC have an easier time of it than I did.  
With best wishes 
Holly Night
General Counsel
Santa Claus Inc. 
Cc:  HR Department"
Oh dear.  Well, if anyone is interested in the position, you can send your application to theipkat@gmail.com.  In the meantime, on behalf of all of the IPKat team, we wish you and your family a very happy and joyful holiday wherever you are.  And, if Santa is part of your holiday experience, perhaps give a thought to Ms Night before you pen that letter of complaint.    

4 comments:

Père Fouettard said...

Dear Holly

Stop worrying! As I tell you every year, my friend the Sandman will solve these problems, and cause you to forget them, at least until they start again in January.

You are the best lawyer a Santa could have.

With best wishes

S. Claus

Roufousse T. Fairfly said...

the reindeer are treated like kings but that doesn't stop at least 1200 letters landing on my desk

[...]

Stop telling me that there is a "Santa exception" to the FAA's rules


Interesting... Mr. S. Claus' outfit is international in scope and enjoys some kind of disputed immunity?

His underlings only "work" once a year?

Hurray! I think we just found BB's next assignment. Move over Santa, I'm in charge now!

[I claim: A method of diverting any thread into an EPO story characterised in that...]

[Oooooooooooh... What was really in that wine bottle anyway?]

Uncle Wiggily said...

Dear AmeriKat:

I have heard that Santa’s former GC is also rather exhausted, as it were, from trying to deal with the law on parallel imports. Because he flies from East to West, he stocks up on low cost but legitimate products made in low wage countries in the East looking forward to spreading his limited budget, after dealing with all the other litigious matters you mentioned, as far as possible in the needy and greedy Western countries. But customs enforcement in places like Amsterdam still haven’t learned the difference between grey and counterfeit – and haven’t gotten their mind around, much less beyond, the Fortress Europe mentality. I guess they figure that just because European law in this respect is a mess and European prices are high, that they should just seize as much as possible and let suffer everyone else at subsequent destinations. Too bad about sick folks, including children, in other countries who can’t get their perfectly legal chocolate bars or medicine if it has the bad luck to be on Santa’s sleigh when Santa lands in in Amsterdam, for example. And I’ve heard that the EU is now considering a yearlong quarantine period for all reindeer borne outside of the EU. Tell that to two or three billion kids!

Indeed, I wouldn’t be surprised if Santa’s GC had to retain local counsel in nearly two hundred countries and an in house staff bigger than Microsoft, Amazon, Google and Apple to figure out whether or how silver haired Santa can distribute his grey goods.

Maybe with such increased resources, he could work out various assignments of patent, trademark and copyright rights so as to ensure that profits for all Santa’s suppliers are maximized in all countries to where Santa makes TRIPs every year and all of Santa’s kind hearted multinational providers are kept whole, wholesome and happy.

So, your next Santa GC is going to need a very large in house legal department and a humongous budget for outside counsel and lobbyists. Indeed, the lobbyists could work on something along the lines of a new Trans Polar Christmas Treaty (“TPCT”) jointly administered by WIPO and WTO. Naturally, adequate investor state provisions will be necessary. Otherwise, Philip Morris may seek damages because it may not be able to advertise its glorious and wholesome tobacco products as far and wide as it may legitimately expect to the largest possible grateful audiences before and during the festive holiday season.

Actually, since WIPO and WTO have large and very expert staffs of highly educated policy elves with little to do these days other than watch the paint dry on the TPP, CETA and TTIP, maybe this project is just what they need to reinvigorate the multilateral process.

You see, every Santa, even the unlicensed ones, has a silver beard and cloud has a silver lining.

But, then, there is the awkward question of who has the best sovereignty claim to the North Pole. So, we shouldn’t get our hopes up to high too soon.

Your increasingly weary,

Uncle Wiggily

Anonymous said...

Is there any update on the meetings of the International Chimney Sizing Standards Committeee preparatory talks committee selection board? And is there an internationally agreed minimum Santa tummy dimension? Obviously climate talks affect the chimney issue but I do think Santa should have a seat at the table (even if it has to be a distance away from it...). Of course the chimney size will have a great influence on the future direction of Santa nationality selection.

Yours, the great overeating

Subscribe to the IPKat's posts by email here

Just pop your email address into the box and click 'Subscribe':